NATIONAL MEDIATION BOARD

PUBLIC LAW BOARD N0. 4979


BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYEES

and

NATIONAL RAILROAD PASSENGER CORPORATION


AWARD NO. 10

Case No. 10

Carrier File No. BMWE-D-130








F I N D I N G .S The Claimant, a Truck Driver with three years' service, was subject to an investigative hearing under the following charge:
PLB No. 4979 Award No. 10 Page 2

 funds, property or services is prohibited. Employees must use Amtrak funds, property or services with care and economy and protect them from theft or abuse".

 In that you used a company vehicle Swivel Dump Truck TG94859-T66401, Mass. Registration #T-750 for your personal use on March 27 and 29, 1990 and on April 2, 1990.

 Also in that on March 29, 1990 at your father-in law's residence at 144 High Street in Danvers you were observed dumping crushed stone owned by Amtrak from a company vehicle Swivel Dump Truck TG94859, T66401, Mass. Registration #T-950 without authorization. Also in that you are in unauthorized possession of used MBTA railroad ties at your father-in-law's residence at 144 High Street in Danvers.

 Following the hearing, the Carrier guilty, and the Claimant was dismissed

 During the course of the hearing,

 that he had taken a Carrier truck to his residence (near his own residence) where

 found the Claimant from service. the Claimant admitted

 father-in-law's it had remained over-

 night on three occasions, without permission from or knowledge of the Carrier.

 At this property, there was found 25 railroad ties, convincingly identified as belonging to the MBTA, for which the

 Carrier acts as contractor

 ant's explanation as to the unconvincing to the Carrier.

 to the conclusion that the

 in certain

 presence Among

 Claimant

 n functions. The Claim-

 of the ties was entirely other factors leading had misappropriated the
                                  Award No. 10

                                  Page 3


ties was his production of an alleged "receipt", containing information clearly not matching the ties in question.
 As to the allegations concerning crushed stone, the Claimant admitted "sweeping out" some remaining stone from the truck, a highly improbable explanation for the presence of a quantity of stone matching that which the Claimant had in fact transported for Carrier purposes in the course of his work.
 The Board notes that the Organization correctly states that there was no direct observation of the Claimant's placement of the ties and stone in his father-in-law's yard. However, the explanations given by the Claimant as to how the items were obtained other than by being misappropriated from the Carrier were contradictory' and evasive.
 The Board has reviewed the record and finds that the Carrier had ample justification for its conclusion concerning the ties and probably the stone. As to the unauthorized use of the truck, this was fully admitted by the Claimant. The charge against the Claimant is a gravely serious one and is not of the type properly subject to corrective disciplinary measures. As a result, the Board finds no basis to disturb the dismissal action taken by the Carrier.
 . c

                                      PLB No. 4979

                                      Award No. 10

                                      Page 4


                          A W A R D


          Claim denied.


                  1 ~ ~, i1 r


          HERBERT L. MARX, JR., Chairman and Neutral Member


                  B. A. WINTER, Employee Member

                  S


                    v

                    P. A. ENGLE, Carrier Member


      NEW YORK, NY


      DATED: