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PUBLIC LAW BOARD NO. 7120
(BROTHERHOOD OF MAINTENANCE OF WAY
PARTIES TO DISPUTE: (EMPLOYES DIVISION
(CSX TRANSPORTATION, INC.
STATEMENT OF CHARGE:
By letter dated April 21, 2010, .I. M. Turner, Engineer Track, instructed N. V.
Hodges ("the Claimant") to attend a formal Investigation in the conference room at the
Carrier's Division Office in Florence, South Carolina, on May 4, 2010, "to determine the
facts and place your responsibility, if any, in connection with your failure to protect your
assignment as Track Inspector SFCF headquartered at Lugoff, South Carolina, beginning
on April 5, 2010 and continuing up to April 13, 2010."
The letter listed two additional matters to be covered in the Investigation: 1)
'`several questionable and unauthorized uses of the CSX-provided fuel card, assigned to
CSX Vehicle No. 94260" between February 15, 2010, and April 12, 2010 and 2) the
Claimant's alleged failure to follow instructions given to him on February 15, 2010, to
park the vehicle assigned to his Track Inspector position "on company property at Lugoff
or Florence. South Carolina."
In connection with the Investigation, the letter continued, the Claimant was
``charged with conduct unbecoming of a CSX employee, dishonesty, theft and
unauthorized use of a company credit card, in possible violation of, but not necessarily
limited to, CSX Transportation Operating General Rule A; General Regulations GR-2 and
CSXT Code of Ethics." The letter confirmed that the Claimant would be withheld from
service pending the outcome of the Investigation.
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FINDINGS:
Public Law Board No. 7120, upon the whole record and all the evidence, finds
that:
The carrier or carriers and the employee or employees involved in this dispute are
respectively carrier and employee within the meaning of the Railway Labor Act, as
approved June 21, 1934.
The Board has jurisdiction over the dispute involved herein.
Parties to said dispute were given due notice of hearing thereon.
The Claimant began his employment with the Carrier on November 29, 2004, and
held the position of Track Inspector 5FCF-069 headquartered in Lugoff, South Carolina,
at the time of the events here under investigation. He was awarded the position effective
February 15, 2010, pursuant to his successful bid. His supervisor, Russell Newman,
headquartered in Cayce, South Carolina, permitted the Claimant to continue the
arrangements with the Claimant's predecessor and use Florence, South Carolina, instead
of Lugoff as his headquarters location. Florence was closer to the Claimant's home in
Hartsville, South Carolina, than Lugoff.
A company vehicle (a truck) is assigned to the SFCF Track Inspector position, and
a company credit card called a Vehicle Card (also "fuel card") is assigned to the vehicle
for the purchase of fuel and other items needed for the vehicle. The Claimant was
required to park the vehicle at the end of his workday at either Lugoff or Florence. It is
not disputed that he did not have permission to park the vehicle at his residence.
The following statement of the facts is troth Engineer Track Turner's and
Roadtnaster Newman's testimonies. Some of their testimony is disputed by the Claimant,
and the Claimant's testimony regarding the disputed facts will be given below. The
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Claimant worked a Monday to Friday schedule, with Saturday and Sunday as his rest
days. He did not report to work on Monday, April 5, 2010, but sent a text message to the
Roadmaster that his mother had a bad accident the day before and that he would be in to
work after his wife dropped the children off at school. The Claimant did not report for
work on April 5.
On April 6 the Roadmaster called the Claimant, but could not reach him. The
Roadmaster left a text message stating that he was sorry about the Claimant's mom but
that he needed to know where the truck was. The Roadmaster did not hear from or
receive any message from the Claimant on April 6, 7, 8, or 9, and the Claimant did not
report for work on any of those days. The Roadmaster listed him as absent without
permission for the entire week of April 5-9, 2010. On Sunday, April 11, the Claimant
called the Roadmaster, who missed the call, but called the Claimant back shortly
afterwards and instructed him that he had to be in Cayce, South Carolina, at 7:00 o'clock
Monday morning.
The Claimant did not show up at Cayce on Monday, April 12"', and the
Roadmaster did not hear anything from him on Tuesday, April 133 On Wednesday,
April 14`" the Roadmaster received a text message from the Claimant asking for directions
to Cayce. The Roadmaster replied stating that the Claimant needed to contact Engineer
Track Turner and provided him with Mr. Turner's cell phone number. Engineer Track
Turner removed the Claimant from service on April 14".
In an effort to find the truck assigned to the Claimant, which was needed for
inspection work by Roadmaster Newman, Engineer Track Turner and a CSX police
officer went to the Claimant's residence on April 8, 2010, where they discovered the
truck in the Claimant's driveway. They knocked on the door to see if the Claimant was
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home but were told that he was at work. The Roadmaster had provided a spare key for
the truck, and they informed the occupant of the house that they were taking the vehicle
with them. Mr. Turner then drove the truck back to the Florence yard, and later that
evening it was taken to Columbia, South Carolina, which is next to Cayce, South
Carolina, Roadmaster Newman's office.
Engineer Track Turner checked the maintenance records of the Claimant's vehicle
and saw that fuel had been purchased on the Vehicle Card on days when the Claimant
was absent from work or was not scheduled to work. These included the following
purchases: Sunday, March 14, Claimant's rest day, 18.4 gallons, $49.00; March 18,
Claimant off sick, 23.9 gallons, 565.01; March 19. Claimant off sick, 24 gallons, $63.51;
Saturday, March 27, Claimant"s rest day, 14.2 gallons, $39.43; Saturday, April 3,
Claimant's rest day, 22.5 gallons, $61.42; Sunday, April 4, Claimant's rest day, 1 1
gallons, 529.01; April 5, Claimant absent, 17.6 gallons, $47.17; April 6, Claimant absent,
9.8 gallons, $27.21; April 8, Claimant absent, 12.8 gallons, $34.75; Saturday, April 10,
Claimant's rest day, 23.9 gallons, $64.02; April 13, Claimant absent, 18.5 gallons,
$50.00. The gas purchases of April 10 and April 13, 2010, were made after the
Claimant's truck was retrieved by the Carrier and no longer in the Claimant's possession.
The Roadmaster testified that he did not give permission to the Claimant to use the
Vehicle Card on days that he did not work. Whenever a fuel purchase is made with a
Vehicle Card, the employee, at the time of purchase, is automatically requested to enter
into the pump's computer the vehicle's mileage and the last four digits of the vehicle
identification number.
On cross-examination Engineer Track Turner acknowledged that he had no signed
receipts identifying Claimant Hodges as the purchaser in the various gas purchases that he
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testified about. Mr. Turner explained that the reason for this was that all of the gas
purchases were made at self-service pumps where no signature is required. Mr. Turner
also acknowledged that he did not see the Claimant incur the gas charges about which he
testified.
The Claimant testified that he had permission to be off work on April 5, 2010,
from Roadmaster Newman. He stated that he tried calling the Roadmaster Sunday night,
which would have been early morning April 5, "and then I texted him and let him know
what was going on and then I texted him again around lunch time or so and that was when
they were transferring my mother. And that's when 1 told him," the Claimant's testimony
continued, "I would be out for the rest. the remainder of the week."
The Claimant testified that when he talked with Roadmaster Newman on Sunday,
April I I`'', he was given instructions to report back to work on April 12`h, but that then his
mother was readmitted to the hospital, and he texted the Roadmaster again "and told him
what was going on." Asked by the hearing officer if he knew when he sent the text
message, the Claimant stated, "It probably would have been around ten, 9, 9:30 she went
back in the hospital." That would have been on Sunday, the I 1
`h,
he testified.
Questioned by the hearing officer if he had permission to be off work on Tuesday, April
13'h, the Claimant answered, "Doctor's permission, and I mean I told him, told Russ
[Newman] too, that I was going to, it was going to be a couple of days." Asked by the
hearing officer if it was for his own illness or his mother's, the Claimant testified, "Well
both. I mean, you know what I mean."
He returned to work, the Claimant testified, on Wednesday, April 14`". He was
told to come to Cayce. the Claimant stated, and, en route, called Roadmaster Newman
about 5:30 in the morning, who told him to get in touch with Engineer Track Turner.
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The Claimant testified that he was off sick the whole week of March 15 through
19, 2010, and the truck was parked at Florence headquarters from Friday afternoon March
12 through Sunday, March 21. He denied purchasing fuel with the Vehicle Card during
that entire period of time. The hearing officer pointed out to the Claimant that the record
of fuel purchases showed that gas was purchased for the vehicle in Hartsville, South
Carolina, where the Claimant lived, on March 19, and asked him if he purchased fuel that
day. Lie answered, "No, I did not, I did not have the truck that whole week." The
hearing officer asked him what he did with the credit card the week in March that he was
off sick. He stated that the Vehicle Card was in the truck.
The hearing officer asked the Claimant about the purchase of fuel on the Vehicle
Card in Darlington, South Carolina, on Saturday, March 27, 2010. He stated that that day
he took the truck in to be serviced by Black's Tire, who referred him to B&B Hydraulics,
because the matweld on the truck was not working. According to the Claimant he did not
have the work done because he was told that it would take a couple of weeks for the
repair and the truck would be down. The monthly attendance calendar for March, 2010,
showed that the Claimant did not work on Saturday, March 17, and the hearing officer
asked the Claimant, "If you were taking the truck someplace wouldn't you charge time
to?" He answered, "I don't charge time for simple stuff like that."
The hearing officer asked the Claimant about the fuel purchase on the truck's
Vehicle Card in Florence, South Carolina, on Saturday, April 3, 2010. The Claimant
testified that he was called out April 3'`' for Florence on the A line. The hearing officer
remarked that the attendance calendar did not show any time paid on that date. The
Claimant replied, "Because I didn't, well that's because I was taken out of service and
Russ didn't put it in, but you can verify that through the call desk or TCIS."
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The Claimant testified that he had "no idea" about the fuel purchase made in
Florence, South Carolina, on Sunday, April 4". Similarly, he stated, he had no idea about
the fuel purchase in Darlington, South Carolina, on April 5". "I was out of town, I was
zone," he testified. Nor, he testified, did he know about the purchase of gasoline in
Marion, South Carolina, on April 6". He was out of town in Charleston, the Claimant
testified, from April 4" until he came back late on April 7", and he then left again early
on the 8'h .
Asked about the fuel purchase with the Vehicle Card on April 10", the Claimant
testified, "I didn't purchase fuel for any reason." The Claimant also denied purchasing
fuel with the Vehicle Card on April 13`". The Claimant testified that he was not given
permission to park the truck at his residence. The hearing officer asked the Claimant why
the truck was at his residence on April 8`" when Mr. Turner and the CSX police officer
recovered it there. He testified that he got called out Saturday for the A line and while
driving back to Hartsville to do a heat run, he got a phone call from the emergency room
that his mother had been beaten with a steel lawn chair and was in the ICU. According to
the Claimant, he felt it was more important to attend to his mother's needs than to return
the truck to Florence headquarters. The company truck was parked at his residence, the
Claimant testified, from April 3"' until the Carrier retrieved it on April 8`".
The hearing officer asked the Claimant where the fuel card for the vehicle was
while the vehicle was parked at his residence. -`With me," the Claimant testified, "and
then it was dropped off at the office, along with ITIS computer and the keys, instructed by
Mr. Turner." The computer and the fuel card, the Claimant stated, were dropped off on
Saturday, April LO`'', at the roadmaster's office in the job briefing room in Florence, South
Carolina. He told Roadmaster Newman that he was leaving them there, the Claimant
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testified.
The Claimant acknowledged that in order to make a gas purchase with the Vehicle
Card, you have to input the vehicle's mileage and the last four digits of the vehicle
identification number. The Vehicle Card for his truck, the Claimant testified, had the last
four digits of the VIN written on it. The hearing officer asked the Claimant whether he
was not the only one who could have purchased the gas from April
3`d
on since he had the
Vehicle Card in his possession. He answered, "Not necessarily, that's just like any other
Company Credit Card, if somebody's got the number on then, they can go anywhere and
use them. You don't necessarily have to run it through a machine." It was pointed out to
the Claimant that all of the purchases were self-service. He replied, "Credit card could be
used inside and it's still self service."
The Claimant testified that Mr. Newman, who is the Roadmaster at Cayce, South
Carolina, is not the roadmaster at Florence, South Carolina, where the Claimant normally
parked the truck assigned to him. Therefore, according to the Claimant, other employees
could have used the truck if necessary and, in fact, this has been done "plenty of times."
The .tune 1, 1999, collective bargaining agreement between the parties states in
Rule 26 - ABSENT WITHOUT PERMISSION, -(a) An employee unable to report for
work for any reason must notify his supervisor as soon as possible." He complied with
that rule, the Claimant stated. The Claimant offered into evidence a note bearing the
signature Dr. Ambrose By L. Thompson The Medical Group 701 Medical Park Dr. Suite
302 Hartsville, S.C. 29550. The note, on a printed form, stated, "Nicholas Hodges has
been under my care from 4-6-10 to 4-9-10 and may return to work/school on 4-12-10.
REGULAR DUTY."
The Claimant was asked why the note referred to April 6" and not April
5'h,
when
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his absence from work began. He stated that the doctor's office was closed on Monday,
April 5" because it was the Easter weekend and that he could get a note for the 5" too.
He added that the doctor actually wanted him to be out two weeks and that he could get a
note confirming that fact.
The Claimant testified that he got called out on April 3"'before he made the heat
run that day. He texted Roadmaster Newman and the roadmaster at Florence to inform
them that the call desk called him, the Claimant stated, but he did not get paid for his time
that day because Roadmaster Newman did not input the time. About four hours were
involved, the Claimant stated. He was removed from service, the Claimant testified, on
April l 4".
Recalled by the hearing officer and questioned whether he received a phone
message or a text message from Claimant Hodges relative to being called out to work on
Saturday, April 3, 2010, on the A line, Roadmaster Newman testified that he did not, that
he received no message from the Claimant between April 2 and April 5, 2010.
Roadmaster Newman testified that prior to the Track Inspector position being filled, when
the truck was parked at Florence he used to get requests from Florence to use the truck.
Once the position was filled, he stated, he never got a call about using the vehicle.
Roadmaster Newman testified that the fuel card, the ITIS computer, and the keys
to the vehicle that the Claimant testified he delivered to the roadmaster's office in
Florence were not received by him (Newman). Roadmaster Newman read from his cell
phone a text message that he sent to the Claimant on April I5`" at 4:39 which stated, "I
need to pick up the keys, the laptop, and the fuel card, where can I pick them up at and
when'?" The Claimant, the Roadmaster testified, replied to him on April 16" at 10:30,
"Sorry I missed you yesterday, stilt at the hospital, I'll drop them off in Florence
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tomorrow."
Roadmaster Newman testified that as of the date of the hearing he had not received
the fuel card, the keys to the vehicle, or the laptop. Engineer Track Turner was recalled
and testified similarly that as of the date of the hearing he had not recovered the fuel card
or the ITIS computer. Nobody from Florence called him relative to receiving the fuel
card, the ITIS computer, or the keys to the vehicle on April 10`" or later, Mr. Turner
testified.
After all of the witness testimony was given at the hearing in this proceeding, at
the conclusion of the hearing, the Organization representative announced that during a
five minute break prior to the Organization's closing statement at the hearing the
Claimant had gone to the office in Florence, where the hearing was being held, and
retrieved the laptop computer and the keys to the vehicle that he had previously delivered
there. The Organization representative tendered the laptop and the keys to the Carrier.
No mention was made of the fuel card also being found together with the other missing
items.
Following the close of the hearing, by letter dated May 21, 2010, R. E. Moore, Jr.,
Division Engineer, notified the Claimant of the Carrier's determination, based on a
thorough review of the transcript, that "the facts support and confirm the following:
You failed to report to work and protect your assignment April 5, 2010 through
PI\
pril 13, 2010. You were in possession of and used the company provided fuel
card inappropriately (for other than vehicle 94260), April 4, 5, 6, 8, 10 and 13,
2010, for a total of $252.16, which were also dates you were not working. You
also failed to comply with instructions given to you to park vehicle 94260 on CSX
property during time periods you were not working. This vehicle was found on
April 8, 2010 at your residence, off CSX property and recovered by CSX police.
We find you were in violation of CSX Transportation Operating General Rule A,
General Regulations GR-2 and the CSXT Code of Ethics. Due to the serious
nature of these charges and actions, discipline assessed in this case is your
immediate dismissal from the service of CSX Transportation and forfeiture of all
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rights and seniority. Please arrange to return all company items, CLC card, switch
key, ID card, and rulebooks to Roadmaster R.P. Newman at Cayce, SC."
It is the position of the Carrier that Claimant Hodges was provided a fair and
impartial Investigation in accordance with Rule 25 of the Agreement and that all of his
due process rights were fully protected. Regarding the Organization's request to be
provided certain management records prior to the date of the Investigation, the Carrier
cites a prior Board decision holding that no pre-investigation discovery rights are
provided by the Agreement. On the merits, the Carrier argues that sufficient credible
evidence demonstrated that the Claimant was guilty as charged. The Claimant's gas
purchases for personal use with a Carrier fuel credit card, the Carrier contends, were acts
of theft and cannot be condoned by any employer. "Theft of Carrier resources," the
Carrier asserts, "cuts at the very nerve of the employer/employee relationship and can be
met by the most severe disciplinary penalty, dismissal, which Claimant Hodges was
assessed." The Carrier concludes that given the Claimant's short tenure with the Carrier
and the seriousness of his proven offense, discipline of dismissal was fully warranted and
should be upheld by the Board.
The Organization contends that the Carrier has not sustained its burden of proof in
this case, arguing that Engineer Track Turner "testified that there was no proof of gas
purchased by Mr. Hodges." In addition, the Organization asserts that "Mr. Newman
instructed Mr. Hodges to park the vehicle at Lugoff or Florence, suggesting a lax
atmosphere with little regard to rule or the agreement." The Organization contends that it
was improper for Roadmaster Newman to mark the Claimant as absent without
permission for the week beginning April 5, 2010. since Claimant Hodges was out that
week due to his own sickness and the major medical issues involving his mother. The
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Organization faults Roadmaster Newman for not having the "decency to inform Mr.
Hodges that he had placed him on the payroll as absent without permission." The
Organization contends that there is no proof that the Claimant purchased gas with the
Carrier fuel card while his assigned vehicle was parked at his residence. For all of the
foregoing reasons and because of the Carrier's failure to provide it prior to the hearing
with copies of the documents the Carrier intended to rely on at the hearing, as requested
in writing by the Organization, the Organization contends, the Claimant should be
exonerated of the charges placed against him. The Organization requests that Claimant
Hodges immediately be placed back into service and made whole for all lost wages and
benefits.
On the issue of the documentation requested by the Organization to be given to it
prior to the hearing, the record shows that the request for the documents was not received
by the Carrier until May 3, 2010, one day before the hearing. The only specific document
requested in the Organization's letter, as opposed to a general request for "all exhibits,
and any other pertinent documents, statements, and any other items," was "a copy of the
receipts in reference to the several questionable and unauthorized uses of the CSXprovided fuel card, assigned to CSX Vehicle No. 94260 that when used appeared to be
used inappropriately between February 15, 2010 and April 13, 2010 the Carrier plans to
enter as exhibits at the hearing."
Engineer Track Turner represented at the hearing that in response to the request he
furnished the Organization representative "the gas receipts and also inspection records."
The Organization did not dispute Mr. Turner's representation. In view of the fact that the
request for documentation was received one day prior to the hearing and that the one item
specifically requested by the Organization was provided to it the same day that the request
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was received, this Board finds that the Carrier substantially complied with the
Organization's request for documentation. The record of gas purchases was the major
document relied on by the Carrier at the hearing. The other documents of significance
were the attendance calendars for March and April, 2010. However, those documents
were not specifically requested by the Organization. Under all of the circumstances the
Board is persuaded that the Carrier responded in good faith to the Organization's request
for the production of documents. It is therefore not necessary in this proceeding to rule
on the question of whether there is any obligation on the part of the Carrier to produce
requested documents prior to a scheduled investigatory hearing - something that the
Carrier strongly contends, citing prior authority, that it is not required to do.
The Board believes that the Carrier has established by substantial evidence that the
Claimant failed to report to work and protect his assignment on his assigned workdays
April 5, through April 13, 2010. Roadmaster Newman testified that he received a text
message from the Claimant on April
5`h
stating that his mother was in a bad accident the
day before but that he would be in to work after his wife dropped the children off at
school. Thereafter, according to Mr. Newman's testimony, the Claimant did not show up
for work, and he heard nothing more from the Claimant that week despite the fact that on
April 6 he called and left a text message for the Claimant that he needed to know where
the truck was.
The Claimant testified that he sent two text messages to Roadmaster Newman on
Monday, April 5, informing him of his situation and, in the second message, telling the
Roadmaster that he (the Claimant) would be out for the remainder of the week. We thus
have a clear conflict between the testimony of the Roadmaster and that of the Claimant as
to whether the latter informed the Roadmaster beforehand that he would not be into work
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the week of April 5.
As
between the Roadmaster and the Claimant, the Board is impressed that the
Roadmaster gave consistent and straightforward testimony throughout the hearing,
whether his answers favored the Carrier's case or the Organization's. He appeared to be
an honest and frank witness, and this Board can point to nothing in his testimony that was
questionable on its face.
The same is not true of the Claimant's testimony. Take, for example, the
Claimant's doctor's excuse. It is from a local doctor in Hartsville, South Carolina, and
states that the Claimant was under the doctor's care from April 6 to April 9, 2010. The
Claimant, however, testified that he was in Charleston, where his mother apparently was
being treated, from April 4" until he came back late the 7" and that he left again early on
the 8". (Tr. 54). This raises the question of how then it was possible for him to be under
the care of a doctor in Hartsville from April 6" to April 9". That was not explained at the
hearing.
The Claimant's denial that he purchased fuel for personal use with his Vehicle
Card on multiple occasions in April, 2010, is also not believable. He admitted that his
company-assigned truck was parked at his residence from April 3 to 8, 2010, and that he
had the truck's assigned Vehicle Card in his possession during that time. Nevertheless he
denied that it was he who purchased gas at four different service stations that was charged
to his card on April 4, 5, 6, and 8, 2010. He suggested that someone could have
purchased the gas by providing the station proprietor with the credit card number.
However, the chances that four different stations would sell someone gas to be charged to
a credit card without that person producing the credit card are almost nil. It is also pure
speculation, not supported by any evidence. that the credit card company, in this case
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Master Card, would approve a purchase under a special card, such as the Vehicle Card,
without the purchaser having the card in his possession. The only reasonable inference
from the evidence is that it was the Claimant who purchased the gas on those days or
someone else who was using the card for non-company purposes with the Claimant's
permission.
The Board finds that the Claimant was not a credible witness while the
Roadmaster was highly credible. The Board concludes that the Roadmaster's testimony
regarding communications between him and the Claimant the week of April 5, 2010, was
true and that the Claimant's testimony was not true. The Claimant did not give the
Roadmaster prior notice that he would be absent the week of April 5, 2010, and he was
properly marled absent without permission for that week. The Board also credits the
Roadmaster's testimony that on April 11, 2010, he instructed the Claimant to report to
Cayce, South Carolina headquarters on April 12, 2010, and that the Claimant failed to
report there on either April 12 or 13; 2010, without giving prior notice that he would be
absent. The Board finds that the Carrier has proved by substantial evidence that the
Claimant failed to report to work and protect his assignment from April 5, through April
13,2010.
As explained above, the evidence also establishes that the Claimant used (or,
without company authorization permitted someone else to use) his company Vehicle Card
to purchase gas for personal use on April 4, 5, 6, and 8, 2010. In addition, there is no
credible evidence in the record that he ever returned the Vehicle Card assigned to his
truck to the Carrier. He testified that he returned the card to the Carrier on April 10,
2010, dropping it off in the roadmaster's office in Florence. However, there is no
evidence that any official of the Carrier's ever received the Vehicle Card. Both
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Roadmaster Newman and Engineer Track Turner denied ever receiving it.
More important, Roadmaster Newman testified without contradiction that on April
15, 2010, he sent a text message to the Claimant that he needed the keys, the laptop, and
the fuel card and that on April 16" the Claimant replied that he would drop them off in
Florence the next day. Obviously if on April 16`" the Claimant was promising to return
the fuel card to the Carrier the next day, he could not have given back the card on April
I 0" as he testified. As noted, the Claimant did not deny the Roadmaster's testimony
about his communications with the Claimant on April 15 and 16. Moreover, the
Roadmaster still had both text messages in his cell phone as of the time he testified at the
hearing and read both messages verbatim into the record.
The Board finds that the Claimant still had the Vehicle Card in his possession on
April 10 and 13, 2010, and that it was he (or someone with his permission) who made the
gas purchases with the card for personal use on those two dates in addition to the four
dates previously mentioned. There is no evidence or claim that the Claimant ever
intended to reimburse the Carrier for the gas purchases, and the Board finds that he was
guilty of dishonesty and of theft against the company.
The Carrier has also proved by substantial evidence that the Claimant violated the
instructions given to him to park the vehicle on CSX property during time periods when
he was not working. Even if one were to accept the Claimant's explanation that he
parked the vehicle there in an emergency on April 3" after receiving the news of his
mother's injury, to have made no effort to notify the company of where the vehicle was or
to have someone return it to the company premises was inexcusable. This is especially so
in light of the Roadmaster's text message to the Claimant on April 6" stating that he (the
Roadmaster) needed to know where the truck was.
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The Claimant acted in an extremely irresponsible manner in this case. He basically
abandoned his job for seven workdays leading the Roadmaster to believe, first, on April 5
that he would report for work that day; and, second, on April 11 that he would report the
next day, but failing to report either time or to give notice that he would not come in. He
ignored a direct request from his Roadmaster for information regarding the whereabouts
of his company-assigned truck. And, perhaps most serious, he committed theft against
the company on at least six separate occasions when he used a company credit card to
purchase gas for his personal use with no evidence that he did so other than with criminal
intent.
'Theft alone is generally considered proper cause for discharge. In this case there is
the additional serious violation of failing to protect one's job for seven workdays and a
general disregard of authority. Where theft is accompanied by other serious violations an
employer may reasonably conclude that there is special justification for a severe penalty.
The claim will be denied.
AWARD
Claim denied.
This Board, after consideration of the dispute identified above, hereby orders that
an award favorable to the Claimant not be made.
"L/\ ..
kc,,V
Sinclair Kossoff, Referee & Neutral Member
Chicago, Illinois
August 10, 2010