S 13A. 1049 Award No. ??1
Contracting, a contracting firm that the Carrier regularly uses to perform work. Mr. Wilson informed the Carrier that one of his employees was been tired after admitting to stealing materials from the Carrier and selling them to a scrapyard.
Mr. Kash communicated his concerns to the Carrier that its own employees may have been involved in these actions - specifically Track Supervisor .t. Jones and the Claimant. The Carrier, though Special Agent Bible, conducted a series of interviews with Supervisor Jones and the Claimant. Special Agent Bible determined that Supervisor Jones and the Claimant had: (1) been involved in multiple discussions centered around taking ties and selling them to a scrap yard, (2) gained knowledge that a KASH Consulting employee, Mr. Husband, had on June 3, ?011 stolen steel erossties and sold them to Southern Scrap, (3) had convinced Mr. Husband to give them a portion of the proceeds ($500.00 and $400.00, respectively) in exchange for their silence and agreement not to report the theft, and (4) on March 17, 2011 illegally acquired metal pilings from a contractor by stating they would be used for Carrier work and then sold the items to Southern Scrap and split the cash proceeds.
The involvement of the Claimant in these events included telling Special Agent Bible the following: in relation to (2), the Claimant stated he was aware of the removal of the crossties but was not involved in the actual removal or sale; in relation to (3) the Claimant first stated he did not know why he was given $400 and then stated the money was for repayment of loans owed to him by Supervisor Jones; in relation to (4) the Claimant stated he helped load the pilings and received $250 cash from Supervisor Jones, but he did not realize the pilings were Carrier property.
Due to these events the Claimant was removed from service on June 27, 2011 pending a formal investigation which was held, including a hearing on August 2, 2011. Tlie Carrier charged the Claimant with conduct unbecoming an employee due to failing to notify the proper authority of the theft and sale of Carrier property, providing false and conflicting statements to Special Agent Bible regarding a matter under investigation, and finally receipt of payment in connection with the sale of Carrier owned property on March 17, 2011 and June 3, 2011. The Carrier found the Claimant guilty of these charges and dismissed him via a letter dated August 1$, 2011.
The Carrier argues that the evidence of the Claimant's actions is clear and that they constitute a isolation of the Carrier's rules. Rule L specifically requires employees to report any theft of Carrier property immediately and prohibits unauthorized removal and sale of railroad property. The Carrier also has a General Notice which states employees must have a willingness to obey the rules regardless of past practices and that employment with the Carrier requires honest discharge of duties (see Carrier Brief; page 6). The Carrier argues the Claimant violated both these provisions by being aware of potentially illegal theft and choosing not to report it, and not showing any personal responsibility by inquiring how he could be receiving cash payments for scrap items (see Carrier Brief, pages 6-7). The Carrier further notes the testimony of Special Agent Bible, wherein the Claimant first stated he did not know why he received cash payments in relation to the events of June 3, 201 1 and then later stated they were payment for personal
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1049loans. In addition, later testimony by Mr. Husband, which revealed that the Claimant made suggestions for how to disguise the ownership of the stolen materials. showed that the Claimant clearly knew what vas going on (see Carrier Brief; page 9). The Carrier points to the corroborating testimony of multiple witnesses as proof that the Claimant received cash payments for the sales on March 17, 2011 and June 3, 2011. Finally, the Carrier argues that dismissal was warranted in this case because there is substantial evidence for the Claimant's dishonesty, and dishonesty constitutes the "ultimate breach in the employer-employee relationship" (see Carrier Brief, page 17).
The Organization argues that the hearing was not fair and impartial (see Organization Brief, page 10), and even if it was the Carrier failed to meet its heighted burden of proof due charges of moral turpitude (see Organization Brief, page 7). The Organization contends that in relation to the March 17, 2011 incident that the Claimant clearly believed he was accepting cash to do work on a "quasi-personal" basis for his Supervisor in order to clean up contractor-owned materials that "the supervisor's superiors would have taken a dim view of yet littering the property" (see Organization Brief, pages 7-8). -The Organization also argues that the Carrier mischaracterizes the events surrounding June 3, 2011. It states that the Claimant did advise the contractor employee not to steal Carrier property and that, upon being aware that property was stolen, properly reported the theft to his supervisor (Supervisor J_ Jones was also involved in the theft, but the Claimant was not aware of this fact at that time). In this context, the Claimant thought his later receipt of $400.00 cash was in relation to personal loans owed to him by his Supervisor. Finally, the Organization raises multiple arguments related to the proceedings in claiming that the hearing was not fair because the hearing officer was biased (see Organization Brief, pages 11-20).
The Board finds there is substantial dispute over some of the critical events that occurred in this case, especially whether the Claimant knew that the materials were company materials. There appears to be no dispute that the Claimant in some way assisted in the prohibited selling of Carrier owned merchandise on March 17, 201 1 and June 2, 2011. In attempting to determine the Claimant's level of knowledge the Board will utilize the testimony of Mr. Zack Husband. As Mr. Husband had been fired from his contracting position at the time of the hearing and was working in another position (see Transcript, page 180) it is unlikely he had motive to implicate the Claimant to get his job back. Mr. Husband testified that he had been involved in conversations with the Claimant, specifically about taking metal crossties and selling them for money (see Transcript, pages 184-185), and that the Claimant directly inquired about his portion of the fitnds from the sale of the stolen materials in connection with the March 17, 201 1 1'dent (see Transc ipt, page 188). In relation to the June 3. 20 11 incident, Mr. Husband
.also testified that the Claimant called him and already knew how much the stolen property had fetched because he demanded $500 (1/3 of the total of approximately $1500) (see Transcript, page 197). Further, in the Board's reading of the record the Claimant's defense that he told Mr. Husband not to engage in stealing material (see Transcript, page 281) is denied by Mr. Husband (see Transcript, page 219).
S H.A. 1049 kward No-2 ? z