OR. VICE fESIcrp;
r
PUBLIC LAW BOARD NO. 5396
Parties
to the
Dispute
BROTHERHOOD OF MAINTENANCE
OF WAY EMPLOYES
VS.
SOUTHERN PACIFIC TRANSPORTATION
COMPANY
(Western Lines)
STATEMENT OF CLAIM
1. That the Carrier violated the provisions
of the current Agreement when it dismissed
Welder W.E. Eden. Said action being excessive, unduly harsh and in abuse of
discretion.
2. That the Carrier now reinstate Claimant to
his former Carrier position with seniority
and all other rights restored unimpaired,
with pay for all wage and benefit loss
suffered and his record cleared of all
charges.
FINDINGS
PLB Case No. 43
NMB Case No. 43
By letter dated June 26, 1995, Claimant, a Welder with a
seniority date of May 5, 1976, was called to an investigation
"...to develop the facts and place responsibility, if any, in
connection with your alleged possession of Company tools and
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material without authorization ...." Following a telephone call
from Claimant's wife, Carrier had visited his home and searched
his garage. There, Company officers found numerous tools and
safety equipment that they believed belonged to Carrier.
At the hearing, Claimant denied stealing these items. He
maintained that some had been discarded by Carrier; others he had
purchased at garage sales. Further, he was bringing the equipment back on an as needed basis. The Organization argued that
(1) none of the items was identified as having been stolen from
Carrier; (2) most of the.tools were broken and/or worn and
discarded; (3) as a Welder, Claimant had non-Company owned
welding tools at his home; (4) Claimant's spouse had a vendetta
against her husband because of a pending divorce; and (5) Claimant was not afforded a fair and impartial hearing.
Carrier does not think it plausible that Claimant kept
equipment at home to bring to work as needed, given that there is
a tool house available for storage at the work site. Further, it
is a direct violation of Rule 1.19 to use Railroad property for
personal use. He did not have permission to take this property,
to his home. The fact that he failed to return the equipment
when he changed job locations suggests that he intended to keep
it. Carrier does not find Claimant to be credible and maintains
539
(o-
43
that the Hearing officer's judgment as to this matter should not
be disturbed.
This Board has reviewed the entire record of the case,
including the transcript of the investigation. We find that
Claimant was afforded a fair hearing, with an ample opportunity
to mount a full defense. We further find sufficient evidence to
support the charge against him. As Carrier suggests, it is
inappropriate for the Board to second guess the Hearing Officer's
judgment as to Claimant's credibility.
There can be little doubt that Claimant's offense is a
serious one. it would send the wrong message to other employes
if this Board were to conclude that Claimant was free to appropriate company property with impunity. At the same time, Claimant does not have clean hands in regard to this issue. He was
suspended for a similar offense in 1979.
The record indicates that Claimant has been dismissed from
service since October 4, 1995. His time held out of employment
to date is sufficiently long so as to impress upon him the need
to alter his unacceptable behavior. Should Claimant fail to
learn from this experience that he may not take any Company
property without proper approval, he will most certainly find
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himself in the same position again. At that point, there will be
no further help for him.
AWARD
Claim upheld in part and
denied in part. Claimant
is to be returned to service on a last-chance basis
with seniority and all other
rights intact, but without
backpay.
c fly
. old,
Neut 1 Chairman
C.F. oose, D.A. Ring,
Employe Member Carrier Member
Date of Approval