BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES )
and )
UNION PACIFIC RAILROAD COMPANY )

Martin H. Malin, Chairman & Neutral. Member

R. B. Wehrli, Employee Member

D. A. Ring, Carrier Member


                Hearing Date: April 6, 1998


STATEMENT OF CLAIM:
      Claim of the System Committee of the Brotherhood that: _


      1. The dismissal of Track Patrol Foreman R. D. Busch for

          alleged violation of Union Pacific Rule 1.6, effective

          April 10, 1994, was without just and sufficient cause,

          based on unproven charges and in violation of the

          Agreement (System File D-271j106382BD).


      2. As a consequence of the violation referred to in Part

          (1) above, the Claimant shall "*** be returned to

          service with all rights restored unimpaired and

          compensated for all time withheld from service from

          December-27, 1996 until his return to service with the

          Union Pacific Railroad."


FINDINGS:
Public Law Board No. 6089, upon the whole record-and all the evidence, finds and holds that Employee and Carrier are employee and carrier within the meaning of the Railway Labor Act, as amended; and, that the Board has jurisdiction over the dispute herein; and, that the parties to the dispute were given due notice of the hearing thereon and did participate therein.

      On December 26, 1996, Carrier notified Claimant to report

for an investigation on January 6, 1997. The notice charged -
 Claimant with theft and dishonesty in violation of Rule 1.6 and
 alleged that he claimed time for November 6, 8, and 11, 1996, and
 December 2, S, and 6, 1996, when he was absent from his
 assignment. Carrier also withheld Claimant from service,
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effective December 27, 1996.

 Following postponement, the hearing was held on January 22, 1997. On February 5, 1997, Carrier advised Claimant that he had been found guilty of the charge and had been dismissed from
 service. On May 10, 1997, Carrier-offered to reinstate Claimant _
 on a leniency basis. The offer was rejected unless Carrier would
 agree that Claimant could continue to progress his claim for time
 held out of service. Carrier would not agree to this condition.

      The Organization has launched a,multi-facetedattack on

Claimant's dismissal. First, the Organization contends that the
 hearing was not held within thirty days of the alleged incidents
 as required by Rule 48 (a) of the Agreement. Second, the
 Organization maintains that Carrier violated the Agreement by
 withholding Claimant from service. Third, the organization
 argues that the hearing officer waabiased against Claimant and
 actually testified against Claimant-. _ ___, -

      On the merits, the Organization contends that Carrier failed _

to prove that Claimant intentionally stole timer The
 organization maintains that Claimant legitimately believed that
 he was performing services for Carrier on the -dates in question,
 that he was charging time worked on other days, that he had
 permission to compensate himself for psychiatric visits on some
 of the days in question, and that he made up the discrepancies by
 not claiming time for December 10, 11, 12, and 13, even though he
 worked those days. Finally, the organization urges that the
 penalty of dismissal is excessive and that Carrier admitted that
 it is excessive in itsoffer of leniency reinstatement.

 Carrier maintains that the hearing was timely because it was held within thirty days of the date Carrier knew of the alleged violations. Carrier urges that it acted in accordance with the Agreement when it withheld Claimant from service and that the hearing officer acted fairly and impartially and did not offer testimony against Claimant. On the merits, carrier contends that it proved Claimant's guilt by substantial evidence and that dismissal was an appropriate penalty for such an offense and in accordance with Carrier's UPGRADE (Union Pacific General Rules for Administering Discipline Effectively) policy, which Carrier points out has been upheld in numerous awards. Carrier objects strenuously to the Organization's reliance on Carrier's prior offer of a leniency reinstatement, contending that prior offers of settlement should not be considered by this Board.

 We consider the organization's procedural arguments first. We find no basis for overturning the discipline on procedural grounds. First, we observe that Rule 48_(4) requires that the hearing be held "within thirty (30) calendar days from the date of the occurrence to be investigated or from the date the Company
 has knowledge of the occurrence to beinvestigated . . . " The -

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Manager Track Maintenance testified that he first gained knowledge of the matter on December 16, 1996, when he was discussing with his section foreman the dates on which the
 section foreman had flagged for the Claimant. -

 Second, we do-not agree that Carrier violated the Agreement by withholding Claimant from service. Rule 48 (o) authorizes Carrier to withhold an employee from service pending a hearing where the charges involve flagrant or serious violations. Third, we have reviewed the transcript carefully and we are unable to agree with the Organization's contention that the hearing officer became a witness against the Claimant. we find that the hearing officer afforded---Claimant a fair and impartial hearing.

 Accordingly, we turn to the merits of the claim. As an appellate body, we do not find the facts de novo. Rather, we
 deferto the findings made-on the property if they are supported -
 by substantial evidence. Such deference is particularly
 appropriate where witness credibility is at issue because the
 hearing officer was the person who observed the demeanor of the
 witnesses.

 There was no dispute that Claimant did not-work his assignment on the dates in question and that he claimed time on each of- those dates. Claimant provided a wide variety of explanations. For two of the days, Claimant maintained that he was performing services for Carrier's benefit by having his truck repaired and by having a radio installed in his truck. He also justified overtime that. he put in for, contending that the Manager Track Maintenance approved his charging for time worked on other occasions responding to calls. According to Claimant, he spent the other days receiving counselling from his doctor and was authorized to compensate himself for it. Claimant testified that he had permission from his prior supervisor and that, when he explained this to the Manager Track Maintenance, the Manager
 advised that it was okay to continue compensating himself. -

 The Manager Track Maintenance denied ever advising Claimant that he could compensate himself for doctor visits. The Manager Track Maintenance also testified that he did not trade time routinely and that he expected employees to report their time as of the date they actually worked it.

      Claimant's explanations were not credited on the property

and we see no reason to disturb that finding on appeal. Indeed,
 the variety of out of the ordinary explanations that Claimant
 offered to justify his reporting time on days he did not work his -
 assigned duties is particularly incredible. We find it
 absolutely incredible that Claimant believed he was performing
 compensable services by having his personal vehicle repaired.
 Claimant offered no supporting documentation for his contention
 that he had been authorized to charge Carrier for his time in

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counselling. Claimant's own theory, that he was receiving
 counselling for anger management to the betterment of Carrier,
 was inconsistent with the facts which showed that all but one of
 the counselling sessions were in connection with his son and
 wife, with whom he was in divorce proceedings. Claimant's
 efforts to connect such personal counselling sessions to
 providing service to Carrier are beyond belief. We hold that
 Carrier proved the charges against Claimant.

 Accordingly, we turn to the penalty imposed. We agree with Carrier, that-Carrier's offer of leniency reinstatement is irrelevant to this issue. Offers of settlement are simply not proper evidence because consideration of them as evidence would deter parties from engaging in settlement discussions. Therefore, we will not consider the leniency reinstatement offer at all.

 We also agree with some general propositions presented by Carrier. First, it is not our role to substitute our judgment for Carrier's concerning the appropriate discipline to be imposed. Our review is limited to determining whether the discipline imposed was-arbitrary, capricious or excessive.

      Second, Carrier's UPGRADE Policy, as a generalmatter,

provides for fair, consistent and progressive discipline and is
 entitled to considerable arbitral deference. Finally, dishonesty
 of the type established is generally a dismissable offense and
 reinstatement is to be considered only in extremely rare -
 circumstances. -

      Nevertheless, our review of the record convinces us that the

instant case is one of those extremely rare circumstances in
 which upholding dismissal would be excessive. our decision is
 based on the particular facts presented in the instant case and
 should not be interpreted as setting a precedent for any other
 case. Claimant had twenty-five years of service and there is no
 evidence of any prior discipline. At the time of the incidents,
 Claimant, in his own words, had many problems going on in his
 life and was receiving professional medical assistance for his
 problems. Furthermore, Claimant did not put in for four days
 that all agree he worked, in an apparent effort to make
 restitution to Carrier. -

 The Board strongly condemns Claimant's actions and his apparent belief that he could atone for them completely by not claiming four days' pay. Claimant should not have wrongfully claimed the time that he did and, upon realizing this, Claimant should have come forward to the Manager Track Maintenance, admitted his guilt, and offered to make a complete adjustment. Nevertheless, the Board finds, considering all o£ the unique circumstances of this case, that Claimant should be given one last chance to demonstrate that he can be a productive, honest

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employee. Claimant is to be reinstated, purely on a last chance
 basis. Any further disciplinary infraction will provide cause
 for his dismissal. Claimant is to receive no backpay or other
 compensation, but his reinstatement is with seniority unimpaired.

                          AWARD


      Claim sustained in accordance with the Findings.


                          ORDER


The Board, having determined that an award favorable to Claimant be made, hereby orders the Carrier to make the award effective within thirty (30).daysfollowing the date two members of the Board affix their signatures hereto.

                  Martin H. Malin, Chairman


D.A. Ring, R.B.cWehrli
 Carrier Member Employee Member

      Dated at Chicago, Illinois, April 27, 1998.


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