PARTIES TO DISPUTE:

          Brotherhood of Maintenance of Way Employees


                          and


          Norfolk Southern Railway Company


STATEMENT OF CLAIM:

          1. The dismissal of Foreman Tommy Hamilton,

          Jr., for his alleged conduct unbecoming an

          employe in connection with unauthorized use

          of company telephone card from October, 1999

          to March 2001 was without just and sufficient

          cause and excessive punishment (System File

          MW-BLUE-O1-05-LM-061).


          2. Foreman Tommy Hamilton, Jr. shall now

          [be] reinstated with seniority and all other

          rights unimpaired and compensated for all

          wage loss suffered.


FINDINGS:

 This Board, upon the whole record and all of the evidence, after hearing, finds and holds as follows:

 1. That the Carrier and the Employees involved in this dispute are, respectively, Carrier and Employees within the meaning of the Railway Labor Act, as amended,; and

 2. That the Board is duly constituted by agreement under Public Law 89-456 and has jurisdiction over the parties and the subject matter involved in this dispute.

 3. This Award is based on the facts and circumstances of this particular case and shall not serve as a precedent in any other case.

 OPINION OF THE BOARD:

 The present dispute arose as a result of the Carrier's determination that the Claimant was guilty of conduct unbecoming an employee because the Claimant had used a Company telephone credit card to make personal calls from his home without

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authorization during the period from February 2000 to February 2001. The record reflects that the Claimant admitted making such personal calls with the Company telephone credit card. (Carrier Exhibit A at page 12 of 56.)

 The Carrier asserts that the action of the Claimant constituted a dishonest act akin to theft. The Carrier notes that the personal telephone calls amounted to $389.23.

 A careful review of the record confirms that the Claimant received proper advance notice from the Carrier about the requirement that the Claimant limit the use of the Company telephone credit card to Company business. As a result, no basis exists to excuse, ignore, or justify the actions of the Claimant.

 An exhaustive review of the record fails to reveal any basis to substantiate the Organization's claim that the Carrier treated the Claimant more severely than other similarly situated employees. In fact, the record fails to identify any other employee or employees who had engaged in similar conduct to the same extent as the Claimant. The only two employees identified by the Organization did not engage in anywhere near the same degree of improper use of a Company telephone credit card as the Claimant. In fact, the record fails to prove that one of the two referenced employees misused a Company telephone credit card at all. With respect to the other employee, the minor misuse of the Company telephone credit card occurred incidental to the use of the telephone credit card to conduct Company business. As a result, insufficient evidence exists to prove that the Carrier treated the Claimant more severely than any other similarly situated employee or employees. In the absence of such disparate treatment, no basis exists to sustain the claim.

 AWARD:

 After thoroughly reviewing and considering the transcript and the parties' presentations, the Board therefore finds that the claim should be disposed of as follows:

      The Claim is denied.


                Robert L. Dou4las9'

                Chairman and Neutral Member

!2 2 /~
 D Bartholom D.L. Kerby ~
 Orga ization ember Carrier Member
 Dated: !o a

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