Public Law Board No. 5735, upon the whole record and all of the evidence, finds and holds that the Employee(s) and the Carrier are employee and carrier within the meaning of the Railway Labor Act, as amended; and, that the Board has jurisdiction over the disputes(s) herein; and, that the parties to the dispute(s) were given due notice of the hearing thereon and did participate therein.
Claimant and employee with 41-years service, while working as a track foreman, was cited to attend an investigation on a charge that he falsified payroll records for himself and his subordinates, when on five -dates in March 1994, he reported overtime worked when he and the subordinates were actually off the property. Following an investigation into the incident, Claimant was dismissed.
The Board has reviewed the transcript of the investigation, and concludes that Carrier supported the charge with adequate evidence. Video tapes and work reports reflecting the activities -of Claimant and his subordinates were introduced at his investigation. This evidence clearly established that Claimant was not performing work during the times that overtime was claimed on the relevant dates. -The evidence is conclusive that Claimant fraudulently sought payment of six hours and forty-six minutes of overtime that he did not work.
Claimant's defense at his investigation and before this Board is that Carrier encouraged a practice of reporting overtime not worked in exchange for other considerations. Further, that the punishment of dismissal for the infraction is excessive and harsh for an employee with 41-years service with Carrier.
The Board is not disposed to disturb the discipline assessed. Adequate and conclusive evidence is available to support a showing that Claimant was indeed guilty of claiming overtime that he did not work. This is obviously theft, and is no- less serious than theft of money or material. Further, the Board is not persuaded that the overtime was being claimed in exchange for other considerations and was actually condoned by Carrier. Moreover, Claimant is not entitled to mitigation of the penalty of dismissal on the basis of his long service record with Carrier, as this record indicates that he had recently been dismissed for theft of Company gasoline, but was reinstated approximately a year before this most recent incident, under a "Last Opportunity - Reinstatement Agreement."
In reaching this result the Board notes that it is aware that the Fourth Division of the NRAB, in Award 4976, on September 1, 1995, modified the dismissal of one of the individuals involved in the "overtime scheme" io a 15day suspension. In effecting this modification, the NRAB noted that:
This is not the situation this Board is faced with here, Mr. Orozco, had recently been reinstated under a last chance agreement for theft of Company gasoline. Further there are other entries that conclusively indicate that he does not possess a good service record. Accordingly, it has not been established to or satisfaction that he should be afforded any further considerations for reinstatement. His claim will be denied.