BROTHERHOOD OF MAINTENANCE )
 OF WAY EMPLOYES )
 AWARD NO. 13
 and ) CASE NO. 13
 BNSF RAILWAY COMPANY )

 STATEMENT OF CLAIM:















Public Law Board No. 6538, upon the whole record and all the evidence, finds that the parties herein are Carrier and Employes within the meaning of the Railway Labor Act, as amended; that the Board has jurisdiction over the dispute herein; and that the parties to the dispute were given due notice of the hearing and did participate therein.

 On April 12, 2005, Claimant, a four year employee, was on vacation when he realized that he had mistakenly retained a company fuel card and cell phone. Assistant Abel Rodriguez went to the Claimant's residence to retrieve these items. Upon arriving at the Claimant's home, Rodriguez noticed what appeared to be new railroad ties placed along Claimant's driveway for landscaping. When asked about the ties, Claimant told Rodriguez that his direct supervisor, Brian Hipol, Manager Roadway Planning, had given him permission to take the ties three years earlier.
 P.L.13. No. 6538 Case No. 13
 Page 2 Award No. 13

 The next day, Manager Hipol was contacted and asked if he could confirm Claimant's explanation. He stated that that he had not given the Claimant permission to take the ties. As a result, Claimant was notified to attend an investigation on the charge that he misused Carrier property. The investigation was held on April 21., 2005. Claimant subsequently was dismissed for violation of the following rules:







At the investigative hearing, both Rodriguez and Roadmaster Chris Yeoman testified that they took photographs of the railroad ties on Claimant's property on April 15, 200.5 when the notice of investigation was delivered. The photographs were introduced in evidence at the hearing. Rodriguez and Yeoman agreed that the ties on Claimant's property appeared to be new and were not scrap ties that bad previously been in service on the railroad.

 Manager Hipol also testified. He affirmed that his earlier statement was correct and that he could recall no occasion when Claimant sought or obtained permission to take railroad ties off Carrier property for his own use. Manager Hipol testified that new, pre-plated railroad ties have a monetary value to the Carrier. Theft of these ties is viewed very seriously by the Carrier, he stated.
P.L.B. No. 6538 Case No. 13
 Page 3 Award No. 13

 Claimant acknowledged that the railroad ties used to landscape his home had been obtained by him from the Carrier's property soon after he was hired. He stated that he asked Manager Hipol "in passing" if he could take unusable ties for his own use and that Hipol gave him a "positive response." Based on this exchange, Claimant insisted that he reasonably believed he had permission to take what in his view were scrap ties that were of no value or use to the Carrier.

 Before proceeding to the merits of this case, we turn to the threshold issues raised by the Organization concerning due process.

 First, the Organization contends that Claimant's rights of due process were violated because the conducting officer of the investigation hearing was not the individual who issued the Carrier's disciplinary determination. Instead, the decision was rendered by Division Engineer Boyce, the Charging Officer, who was not present at the hearing.

 The same issue has been raised before on this property and it has been resolved against the Organization. In Third Division Award No. 33491, the Board held that the issuance of a disciplinary letter by an official who was not present at the investigation does not automatically deprive a claimant of his due process rights, particularly in the absence of any rule which sets forth who may or may not issue charge notices, conduct hearings or render decisions. That principle was affirmed in Public Law Board No. 5850, Award No. 195. We note, too, that in Third Division Award No. 31625, cited by the Organization, the Board stated:

Based on the foregoing precedent, and the logic expressed therein, we find that the Organization has not shown in this instance that an independent review by a deciding official adversely affected the Claimant's right to a fair and impartial investigation.

 Similarly, we are not persuaded that the transcription of the investigation hearing contains errors or omissions that were significant or rose to a level which would justify vitiating the discipline in this ease. Overall, the Board is convinced, notwithstanding the Organization's assertions to the contrary, that Claimant was afforded all procedural rights under the Agreement and that he was provided a fair and impartial investigation in accordance with due process.
P.L.B. No. 6538 Case No. 13
 Page 4 Award No. 13

 Turning to the merits, we have carefully reviewed and considered the record in this case. The cited rules prohibit dishonesty and further provide that employees are required to obtain permission before removing or selling Carrier property. Substantial evidence shows that Claimant violated the rules as charged. As the weight of the evidence demonstrated, the pre-plated ties on Claimant's property were not scrap. They had a substantial monetary value to the Carrier. Claimant concededly knew he was required to obtain permission to take useable ties of this kind. Based on his own testimony and that of his manager, we find that Carrier properly determined that Claimant did not have the authority to take the pre-plated ties.

 The Organization argues that the element of wrongful intent associated with rules prohibiting dishonesty and unauthorized taking of Carrier property is lacking on this record. There is no question that proof of intent is oftentimes a thorny evidentiary problem because it is based on a subjective state of mind. As a result, the element of intent must be inferred from an individual's conduct and all the surrounding circumstances. In this case, we rind that the evidence is sufficient to support the inference that Claimant intended to take the ties for his own use without proper authority. Claimant's misconduct is not negated or excused simply because his actions were open and in full view.

 There is no evidence that this particular violation of Carrier rules was tolerated as a common practice on the property. Dishonesty and theft are serious charges and, if proven, warrant dismissal. The Board rinds no mitigating circumstances that could be considered. Therefore, the claim will be denied.

      Claim denied.


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              ANN S. KENIS, Neutral Member


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Carrier Member Organisation Member
 William A. Osborn Roy C. Robinson

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Dated this` day of J UdOe 1 2007.

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