PARTIES TO
vs.
Transportation,
Carrier 2016-214221
Referee: Sherwood Malamud
FINDINGS
The Board, upon the whole record and on the evidence, finds that the parties herein are Carrier and Employees within th.e meaning of the Railway Labor Act, as amended; that this Board duly constituted by agreement of the parties; the Board has jurisdiction over dispute, and that parties were due notice of the hearing.
By November 6, Claimant. S.M. requested that disciplinary matter be processed by Public Law Board 7529 (Special Board of Adjustment) for expedited handling.
Carrier hired Claimant S.M. Kyser on July 24, 2006. By letter dated August 30, 2016, Assistant Division Engineer (ADE) McLain notified Claimant to attend an investigative hearing, after mutually agreed to postponements, that occurred on October 19, 2016. 11le Notice stated the purpose of the hearing was:
"... to determine the facts and place your responsibility, if any, in connection with an incident that occurred at approximately 1000 hours, on August 23, 2016, in the vicinity of Marrow County [Ohio]. Over a two year period while performing duties as VO (log loader), you were taking used ties from the property and using them at your home for various purposes; also, giving the ties to neighbors... "
CSX Railroad Police Special Agent S. Studcne notified ADE McLain that Claimant had a
collection of banded and unhanded railroad ties on hls property. On August 24, 2016 McLain and Studene met with Claimant They confronted him about the ties on his and his neighbors' properties and they discussed MWI Policy 404.04. At the hearing, the Carrier charged Claimant with violating Operating Rules 103.l, 105.l, as well as MWI 404.04. These Rules and Policy provide. as follows:
105- Reporting Conditions
105.1 and any
condition that may operations. Immediately report the following conditions to the proper <>n+hn,,.,h,•
Loss, damage, or theft of CSX o:r customers' property; and
Any condition that may affect safe and efficient operations.
Used Crosstie Management
Purpose: to properly manage storage and disposal of used crossties and other wood products generated from track maintenance activities system wide.
Coordinate crosstie removal and disposal efforts
with Management ... or Operations...
to to ensure
loading of used crossties or other removal methods.
D. Distribution of used crossties to the general public and outside parties other than those designated by the Fleet Maruiger or Specialist is strictly prohibited.
There were times, particularly when material was to be transported from the Southern to the Northern end of the territory, Claimant would take home the flatbed vehicle used to transport rail and ties. On those occasions that he had perm.ission to take the vehicle home, he took a load of ties, as well.
When Special Agent Studene observed Claimant's property and that of his neighbors, he discovered that Claimant had transported 642 ties, that he counted on August 22, 2016, to Claimant's and his neighbors' properties. He believes the number taken to be approximately 700, both banded and unhanded over a period of approximately two years. Banded ties are committed to third party vendors. When Cfaimant took those it amounted to theft. The ties were the
property of the third party companies.
LU:nmam did not
Mfma_:ger or Specialist to store on
PLB
property or distribute them to Claimant did obtain pe1nn:ss1cm to construct a "'v'"''"''"'
give permission and there is no
ties at any to.
approximately 2 to 3 years ago,
tra1t1stiort and unload a number
not permission to
'-""'"'uuJ,.,. a shooting range backstop. ADE did not
'-'«•uuau.• to believe that he had carte blanche to take
After reviewing the on property developed at the October 9, 2016 hearing,
letter dated November 8, 2016, Division Engineer for the Great Lakes assessed dismissal as the appropriate discipline for Claimant's conduct.
The Carrier argues that Claimant a fair hearing. Claimant admitted to taking the ties. Two years previously had to take ties to build a shooting range back stop. He did not have permission to continue to take and supply them to bis neighbors. banded ties were property of third party vendors. those ties constitutes theft. Dismissal is the appropriate penalty for NRAB Third Division No. 36337 (BMWE v. (Kenis),
<11smu,sa1 was determined to the appropriate penalty for taking a half full can.
fora
the authorization provided to him. light of the prior authorization he received, the discipline imposed should be reduced to a lesser form other than dismissal.
Board Findings
Procedural Objection
At the on property hearing on October 9, 2016, the Organization objected to the August 30, 2016 notification letter's failure to set out the Rules allegedly violated by Claimant that would form the basis for the investigation. This Board determined in Awards 106 (MacDougall) and 114 (Malamud); NRAB Third Division Award No. 35022, BMWE v. BNSF (Kenis) that it was not necessary to specify the Rules allegedly violated. Under Rule 25, the Carrier had to provide suflicient information to alert Claimant of the conduct that is the subject of the investigation. The Carrier d.id so in the August 2016 notification letter.
7529
on to
Studene taking a statement from Claimant without advising him of his right to consult with an Organization statement. The Officer resolved this objection by removing It was not available to the Board.
not seen or this decision. Board
concludes Claimant T'{:>/''Pnr.. rl
Claimant received permission to some to construct a shooting range back stop on his p.roperty. He received that permission 2 to 3 years prior to the Carrier's notice to investigate his conduct. The Organization this Board to interpret the permission given once to an ongoing approval to take ties. The investigation brought that approval to an end. If there is to be discipline, it should be limited.
The Carrier has established by substantial evidence that Claimant received permission to take a sufficient number of ties to build the backstop. Claimant did not receive permission to distribute ties to neighbors. Rules 103 and 105 are rules that are subject to annual training.
Claimant did not ask permission to continue to take ties. Carrier's rules, MWI 404.04 prohibit the distribution of chemically treated to the general public.
Claimant had on his property banded Those ties were the property of third vendors. Those were awaiting pick-up by the vendors. Based on this evidence the Board
finds that the Carrier has established by substantial evidence that Claimant violated Rules 103.1,
105.1 and MWI 404.04. As award above, dismissal is the aotlrormate penalty theft.
Claim denied.
r o (
r o (
Sherwood Malamud
Neutral Mfmber Date: "'Z-/ ;l.7,