PARTIES ) BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYEES
 To ) and
 DISPUTE ) BURLINGTON NORTHERN RAILROAD COMPANY
 STATED":ENT L
 OF CLAIM: Claim of P. P. Ghramm for reinstatement to service
 with payment for all timelostbeginning July 17,
 1986, until reinstated to the service of the Car
 rier, with all rights intact and that the charges
 be removed from his service record.
 FINDINGS: The Board, on consideration of the whole record and
 all the evidence, finds that the parties herein are
 Carrier and Employee within the meaning of the Railway Labor Act, as -
 amended, that this Board is duly constituted by Agreement dated April
 10, 1987, that it has jurisdiction of the parties and the subject
 matter, and that, pursuant to the Agreement dated April 10, 1987,
 oral hearing by the parties, including Claimant, has been duly waived.-

 Claimant L. P. Ghramm, Special Equipment Operator, was dismissed on July 17, 1986 "for alleged improper and unauthorized sale of company material and use of company equipment in connection with used ties and miscellaneous structures, including violation of Gener-_ al Rules A, B, D and L plus additional General Rules 530, 530A, 530B, 532 (C) and 535 of the Rules of the Maintenance of Way, effective April 27, 1986." These rules read as follows:

              General Rule A: "Obedience to the rules is essential to safety and to remaining in service. The service demandsthe faithful, intelligent, and courteous discharge of duty."


              General Rule B: "Employees must be familiar with and obey all rules - and instructions and must attend the required classes. If in doubt as to the meaning of any rule or instruction, employees must apply to the supervisor for an explanation."

        .~___ _._ - ----^-.--~---^' AWARD NO.y3.__- (p )


                                    CASE NO. 3


                General Rule D: "Employees must cooperate and assist in carrying out the rules.and instructions and must promptly report to the proper officer any violation of the rules or instructions, any condition or practice which may imperil the safety of trains, passengers, _ or employees, and any misconduct or negligence-af-fecting the interest of the company."


                General Rule L: "Employees must conduct themselves in such a manner that their company will not be subject to criticism or loss of goodwill."


General Rule 530: "Employees will not be retained in the service who
 are careless of the safety of themselves or others,
 disloyal, insubordinate, dishonest, immoral, quar
 relsome, or otherwise vicious, or who do not cor, duct--
 themselves in a manner that the railroad will not be -
 subjected to criticism and loss of goodwill."

 Rule 530A: "Factual Report of Information.- Employees who with
 hold information or fail to give factual report of
 any irregularity, accident or violation of the rules -
 will not be retained in the service."
 Rule 530B: "Theft or pilferage shall be con sidered sufficient
 cause for dismissal from railroad service."
 Rule 532(C): "Other Business or Occupation. Employees must not -
 engage in other business or occupation unless they
 have applied for and received written permission
 from the proper authority."
 Rule 535: "Unless specifically authorized, employees must not
 use the railroad's credit and must neither receive
 nor pay out money on the railroad account. Property
 of the railroad must not be sold nor in any way dis
 posed of without proper authority. All articles of
 value found on railroad property must be cared'for
 and promptly reported."

 The transcript of investigation shows the following testimon"by Mr. D. J. Grisham, Special Agent, Joplin, Missouri:

    "Q. Did you receive information about recent disappearances of company material in the Joplin area? A. Yes, sir.


                                                ~3~Io ~3

                                      AWARD _: C . 3 (r . _ ) CASE NO. 3


Q. From what sources did you receive this information?
 A. From, uh, voluntary statements given by different, uh, people -
    contacted in the Joplin area. -


Q. Did you receive signed statements from any of these people?
 A. Yes, sir, I did.

 Q. Do you have any of those signed statements with you?
    A. Yes, sir, I do-. Uh, first I have one here from-uh Tony Mack Williams of Joplin, Missouri, Signed statement.


Q. We'll introduce this as Exhibit "A".

 Q. Uh, would you please uh, read this statement into the record?
 A. Yes, sir. This statement is given in reference to used railroad
 ties that I purchased from the Burlington Northern Railroad. Ref
 erence to tie contract, dated January 4, 1985, for used ties out
 of the Carl Junction, Missouri, Yards. I was approached by Rick
 Pattorn about picking up a lot of ties at the Carl Junction, Yards.
 Rick. told me that I would sell the ties, have the check put in my
 name and then split three ways with him and Lester Ghramm. Rick
 said that we would pay Tuffy Ghramm for one load and then not pay
 him for another load. I got approximately 4,000 to 5,000 ties
 (used switch and 8 foot. ties), out of the yards. The ties were
 loaded on my trucks and trailers by Rick Patton using the Burling
 ton. Northern Speed Swing. I sold the ties to Payless in Joplin
 (approximately 1,500-8 foot ties), Sutherland Lumber in Pittsburg,_
 Kansas (approximately 1,000-8 foot ties), 100 ties to Snyder
 Bridge, and the remaining ties to different individuals out of my
 yards through ads in the paper. I sold the ties at approximately
 $4.00 each. When I would get paid for the ties, I would cash the
 checks and per agreement pay Rick Patton and Lester Ghramm a third
 each. During this time Tuffy was given approximately $900 in
 cash as he refused a check. A couple of times I gave Tuffy cash
 at the railroad depot on West 20th Street or I would give the money
 to Rick and Lester and they were suppose to give the money to Tuffy.
 Sometimes Tuffy would say - "Just-give the money to Rick or Lester."
 I hired Kenny Townsend from Joplin to have the ties--to haul the
 ties out of Carl Junction Yard. I believe he hauled at least 200
 ties to Sutherland Lumber in Pittsburg, Kansas, for which I paid
 him approximately $200. I paid Rick Patton and Lester Ghramm
 approximately $5,000 each for their share of the ties from Carl
 Junction.

    In reference to the piggyback ramp I removed for the Burlington Northern Railroad at 2101 West 20th Street, Joplin, Missouri. I was told by Rick Patton and Lester Ghramm, while at my house, what to bid on the ramp removal. I went to Tuffy's office at the old BN Depot at 10th and Main Street, in Joplin and told Tuffy that I bid $8,300 to remove the dock. Tuffy said, "Lets make it $9,300."


                                                    q3H 0 -3

                                      r(IAl.J 1r. r l:


                                          ~1 .

                                      l_l:C~ r


    Rick and Lester had told me that Ames Excavating had a low bid of 12,000. The same day I made the bid, Tuffy told me I had the bid and to get itstarted. We used Burlington Northern Railroad speed swing, air compressor, and jack hammer to do the work with. Rick Patton worked with me everyday until it was done. Lester would be there from time to time running the jack hammer or speed swing. Don Benefill was t$ere with the welder, cutting the rebar when needed. Contract was made by Tuffy--contract was not made by Tuffy until the job was completed--about completed and then, he back dated it two days. The Burlington Northern paid me $9,300 by check. I cashed the check and paid Rick Patton $4,000 in cash with the understanding that he split it with Lester Ghramm and Tony Patton. I want to say that we actually started working on the dock removal four days before the contract was released and then, it was back dated two days of those four days


    In reference to the Used Tie Contract dated May 7, 1985, for removal ofties from 6th Street Yard in Joplin. I had an agree- - ment with Rick Patton and Lester Ghramm to move ties from 6th Street. Rick Patton loaded approximately 400 switch and 8 foot ties onto my vehicles with the Burlington Northern speed swing. The ties were sold to Payless Cashways of Joplin for $1,200. My

    agreement with Rick and Lester was a three-way split. In this _

    case I didn't give them their money, as I had been withstanding

    all-expense and Rick and Lester got a clear profit. Charles Sy- -

    keta and I removed 100 ties from 6th Street and sold to Payless

    for-$4.00 each as I had done in the past. Approximately two years

    ago I= got approximately 200-8 foot ties from Tuffy Ghramm, but I -

    did not pay any money to him. The ties came from Townes Yard. -

    When I sold the ties I paid Rick and Lester, a third each, as

    agreed in all other cases. In the last three or four years I have

    gotten 7,500 to 10,000 used ties from the Burlington Northern Rail

    road. All of the ties were gotten through Rick Patton and Lester -

    Ghramm. In all cases, except for the onetime 1-didn't split on

    the load of 400 ties from 6th Street Yard, I have split all profits

    three ways between myself, Rick Patton, and Lester Ghramm."

    (Tr., pp. 7-9).


    "Q. Did you find any evidence that Mr.- Ghramm had-been paid by Mr. Williams-to assist on this ramp?

    A. Yes, sir. Uh, one the things I have here is, uh, 1099 Miscellaneous--its a form from the Internal Revenue service for tax reporting purposes. Shows here from Tony Williams to Lester Ghramsr, receiving $700 for sub-contract labor or, a Burlington Northern Railroad job located Ruth Yards, 20th and Roosevelt, in Joplin.


Q. We'll mark this Et:hibit "D".

 L43LI 0 -3
                                    11 - . \: .


      Mr. Spears: Mr. Hiett, I'm going to have to object to the enter of these statements from, uh, these people, uh, it's my understand- - ing their not here, to be present, during the investigation for me to cross-examine them, so therefore, I am going to object to entering any statements from these people. Also, I would like to bring to your attention, this thing is dated 1984 it look like it just been recently prepared, uh, there's not even any carbon papers in here, its just an original page of the Form 1099. Therefore, I must object to this being entered also.


Q. Objection is noted. Make it a part of the record.

    Along the lines of Mr. Spears question concerning Mr. Tonly Wil- _ liams availability as a witness, did you ask Mr. Williams to comehere today?


A. Yes, sir, I did.

 Q. Did he come?
 A. He was coming up until last night and he--he, uh, had his mind ch-
 changed his mind.

 Q. Why did he change his mind?
 A. Well he stated that his wife had talked him out of it, due to
 since he gave the, uh, statement which you have there, someone
 person unknown had cut the liner on a swimming pool of his, he'd
 received several phone calls which he said they were threatening _
 in nature, and also, last weekend, this past weekend, in Joplin
 on Main Street, he'd met Lester Ghramm, and he said Lester gave
 him the finger and then in dicated by moving his vehicle he was
 trying to hit him in the door, but he didn't, he took off and went
 on the other way then. And with all these things happening, his
 wife felt that he would not--had better not come." (Tr., p. 11).

 Special Agent D. J. Grisham also testified concerning state-- - ments read into the record from a lady who made out a check to Claimant for $54 (Exhibi.t E and Exhibit F); from a gentleman who made a statement concerning the purchase of ties from Claimant and made out, by his wife, a check to Claimant in the amount of $832 (Exhibit G and - Exhibit H); from another gentleman who gave Claimant a check for $150 . and saw Claimant receive $150 in cash to bulldoze a circular track around chat piles using a speed swing (Exhibit I); from a gentleman for whom Claimant used a company backhoe to build a retainer wall (Ex-hibit J).

 Mr. Donald Dean Benefiel, Rail Complex Springfield, Laborer, tetified:

U3Llo-3

                                  .. , JW.

                                21

                                CAS F T. C.. r


"Q. Have you ever been to, uh, Carl Junction.? A. Yes, I have.

 Q. Have you seen company employees loading ties there?
 A. Yes, sir.

 Q. Was Mr. Ghramm one of those employees?
 A. Yes, sir.

 Q. Was there company equipment being used at that time?
 A. Yes, sir.

 Q. Was this during normal working hours?
 A. Yes, sir,-'it was." (Tr., p. 19).

 The transcript of investigation shows the following testimony by Claimant:

    "Q. How much money did you received from Mr. Williams for working on the TOFC dock? A. $700." (Tr., p. 21).


Claimant denied that the Williams statement was true and correct;"he testified that the $54 check received from the lady was given back by him to the roadmaster and that he did not cash the check although _ he signed it; introduced a statement that the $832 check for ties-was - made out to Claimant by mistake; testified:

    "Q. Mr. Ghramm, did you participate in the construction of a retainincj o:all along 44th Street in Joplin? A. Yes, sir, I did.


Q. Was company equipment used in the construction of that wall?
 A. Yes, sir.- We had permission from the roadmaster. That was the
 day that Mr. Grisham caught the machine out of the bull- pen down
 here and the, Mr. Wagoner caught me in the bathroom here and told
 me not to be taking machine off of railroad property anymore, and
 they haven't been.

 Q. Did you think that Mr. L. O. Ghramm, your supervisor had the auth
 ority to move that machine down to such a job?
 A. Well, when I asked him, he said it was okay.

 Q. Did you receive any money for working on that wall yourself?
 A. Yes, sir, I did.

 1-t 314 0 3
                                    ,. Sa

                                    4IS r .~ .


Q. How much money did you receive?
 A. Uh, I don't remember. Four or five hundred dollars or so, I
 don't remember really. It wasn't for the ties, it was just for
 the landscape work.

 Q. Did, uh, did you recall constructing a race track? -
 A. Yes, sir.

 Q. Was company equipment used for construction of that race track?
 A. Yes, sir, it was. We had permission from the roadmaster.

 Q. Did you asked the roadmaster if it was acceptable to do this?
 A. Yes. We asked him permission to use the machine, told him what
 we was going to do with it. He said it would be all right. Uh,
 I said that happened back before Mr. Wagoner told us not to be
 taking them off, so we haven't taking them off again."- (Tr., p.
 25).

                    -----------------


The Organization made timely objection to--the statement by Tony
 Mack Williams (Exhibit A) on grounds of hearsay. Mr. Williams was -
 not an employee of the Carrier, was not under the Carrier's supervisior
 or control, and-was not subject to subpoena power of the Carrier. Un
 der the circumstances, it is well settled in the railroad industry that
 written statements may be admitted into investigations even though the
 persons making such statements are not available for cross-examination.
 It should be noted that the Claimant knew of the written statement,
 the identity of the person making the statement, the nature of the
 statement, and had opportunity to communicate with him and to make
 inquiry. The record indicates that Mr. Williams would have appeared
 at the investigation to testify had there not occurred acts construed
 as intimidation. Considering the nature of the transactions involving
 Mr. Williams as detailed in his statement, evidence of record pertain
 ing to Mr. Williams' reputation allows doubt as to his credibility.
 Additionally,- there is allegation by the Organization that Mr. Williams
 was subjected to improper pressure in obtaining the statement from him.

 The Board has given serious consideration to the Organization's objections concerning Mr. Williams' statement. For chiefly this reason, the transcript of investigation has been quoted above at considerable length, and, even so, additional quotation might have been made. Close scrutiny of the record was made to determine the weight to be given to Mr. Williams' statement and to determine whether his statement is corroborated by other evidence of record.

Ll34o-3

                                CASE.-


      The i. .

evidence of record fails to show probative evidence of improper pressure brought upon Mr. Williams in regard to his making the statement. There is evidence of corroboration of Mr. Williams' statement. Mr. Benefiel's testimony concerning the work at Carl Junction performed by Claimant is an element of corroboration. Claimant's testimony about his working further corroborates this aspect of Mr. Williams' statement. finder the circumstances, despite the Claimant's denial of the accuracy of Mr. Williams' statement, it wasnot arbitrary or capricious for the Carrier to conclude that payment was made to Claimant as stated by Mr. Williams. '

 Claimant has admitted to the use of Company equipment on the retaining wall construction and on the race track construction. Al-though Claimant asserted that he had permission to do so, it is clear that he had no written permission to do so, and it was not arbitrary or capricious, under the circumstances, for the Carrier to conclude that he used the equipment without proper authorization.

 With respect to Claimant's receipt of checks for payment of railroad ties; ($54 and $832), it was not arbitrary or capricious for the Carrier to conclude that making Claimant the payee of the checks, where railroad ties were actually transferred to the buyers, was not, in fact, a mistake.

 Viewing the record as a whole, there is substantial probative evidence in support of the Carrier's determination that Claimant violated General Rules A, B, D, and L and General Rules 530, 530A, 530B, 532(C), and 535 of the Rules of the Maintenance of Way. In the circumstances of this case, and in the light of Claimant's past service record, dismissal is not excessive discipline.

                    A W A R D


            1. The Carrier is not in violation of the Agreement.


            2. The claim is denied.


            JOSEPH LAZAR, CHAIRMAN AND NEUTRAL MEMBER


DATED: .. _ ~. 2' 1 `j (Y7