PUBLIC LAW BOARD NO. 4426
BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES
"Organization"

 VS.

 CENTRAL VERMONT RAILWAY, INC.

STATEMENT OF CLAIM:

 Claim of the Brotherhood that:

 Award No. 4

 (a) Carrier's dismissal of Claimant Phillip T. Graziano was
 without just and sufficient cause, in that Carrier failed
 to meet its burden of proof and denied Claimant a fair and
 impartial hearing and the discipline assessed was
 disproportionate with the offense.

 (b) Carrier shall restore Claimant Graziano to service, with all seniority, and compensate him for all lost wages, as provided for in Rule 27-A of the Scheduled Agreement.

 OPINION OF THE BOARD


1985 in connection with the following alleged offenses:

 1. Theft of the Company gas and oil at Essex Junction, Vermont, at approximately 0926 hours on November 15, 1985.

 2. Leaving the Company property for non-work related purposes while on duty at approximately 0953 hours and 1034 hours on November 15, 1985.

 3. Sleeping while on duty at Richmond, Vermont, at
 approximately 1325 hours on November 15, 1985.

          4. Violation of Rule #111 of Uniform Code of Operating Rules while on duty at Richmond, Vermont, at approximately 1353 hours on November 15, 1985.


      Rule #111, cited by the Carrier, states in relevant part:


          When other duties will permit, employees in the

          vicinity of passing trains must observe the

          condition of equipment in such trains; trainmen at the rear of moving trains will be in position, on rear platform where provided, and trainmen of standing trains in best possible position on the ground from which a view of both sides of passing trains can be obtained. If a dangerous condition is apparent, every effort must be made to stop the train.


          Train and engine crews of moving trains must, when practical, be on the lookout for signals given by employees calling attention to conditions on their train.

Upon being notified of his dismissal, the Claimant requested a hearing, which was held on December 3, 1985. The Carrier subsequently informed the Claimant that his dismissal was confirmed. Appeal was made through various levels of the grievance procedure, and was declined at all levels. The hearing before this Board took place on February 29, 1988. The Claimant was present and represented by the Organization.

The Claimant's discharge resulted from an undercover investigation conducted on November 15, 1985 by the Carrier. The Claimant was foreman that day for a three person Section gang. After observing the crews' activities throughout the day, the Carrier determined to discharge the Claimant and the other two members of the crew.


      The Carrier maintains that the substantial evidence in the


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record establishes that the Claimant committed the above listed alleged offenses, and that such misconduct warrants the penalty of discharge. The Organization maintains that the carrier has failed to prove the Claimant's guilt, and that the Carrier was guilty of a number of procedural deficiencies that constituted reversible error.


      The Board has determined that the claim must be denied.

The record contains substantial evidence that the Claimant engaged in dischargeable misconduct. Most importantly, the Carrier has established that the Claimant improperly used a Carrier credit card to purchase gas and oil for his own vehicle. Although the Claimant contends that he believed such purchases were proper, as he was using his vehicle for the Carrier's business, the Claimant's explanation is undercut by the fact that he did not put the gas into his vehicle at the gas station where it was purchased, but rather put the gas into a can and a short time later emptied it into his vehicle's gas tank at a parking pull off. The claimant's knowing misuse of a Carrier credit card warrants discharge, particularly in light of other questionable conduct on his behalf on the day in question.

The Board has further concluded that in light of the serious misconduct engaged in by the Claimant, the Carrier committed no procedural errors that would warrant setting aside the discipline imposed. Accordingly, despite the Organization's vigorous representation, the claim will be denied.


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AWARD
      Claim denied.


W. E. LA RUE, J. J H,
 Organization Member Ca ie ,Member <~/2,/ g

                  S. E. BUCHHEIT, Neutral Member


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