BEFORE SPECIAL BOARD OF ADJUSTMENT NO. 924
BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYEES
and
CHICAGO & NORTH WESTERN TRANSPORTATION COMPANY
Case No. 214
Award No.
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STATEMENT OF CLAIM: Claim of the System Committee of the
Brotherhood that:
1. The dismissal of Track Foreman H. J. Gutierrez for
his alleged unauthorized possession of Carrier
material was without just and sufficient cause and
excessive punishment (Organization File 3KB-4859D;
Carrier File 81-92-30).
2. Track Foreman H. J. Gutierrez shall be reinstated
with seniority and all other rights unimpaired,
compensated for all time lost and have his record
cleared of this incident.
FINDINGS:
On October 7, 1991, the Carrier was notified by the county
sheriff that some of the Carrier's property was being stored in
the claimant's garage. Upon investigation into the matter, the
Carrier was denied permission to search the Claimant's residence
and, therefore, Carrier later obtained a search warrant. As a
result of the subsequent search, it was discovered that the
Claimant had in his possession approximately $10,000 worth of
Carrier's property.
Claimant was dismissed from service after it was determined
at a formal hearing that he was guilty of possession of Carrier
property in his home without authority.
The instant claim was filed by the Organization on behalf of
the Claimant and the parties being unable to resolve the issue,
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this matter comes before this Board.
This Board has reviewed the evidence and testimony in this
case and we find that there is sufficient evidence in the record
to support the finding that the Claimant was guilty of
unauthorized possession of Carrier property without just cause.
Claimant admitted that he had the Carrier property in his garage
and stated that he had no authority except "my own" to have
possession of it.
Once this Board has determined that there is sufficient
evidence in the record to support the guilty findings, we next
turn our attention to the type of discipline imposed. This
Board will not set aside a Carrier's imposition of discipline
unless we find its action to have been unreasonable, arbitrary,
or capricious.
In the case at hand, the Claimant has been found guilty of a
very serious offense. It is understandable that a Carrier would
not want someone in its employ to be converting Carrier property
to his or her own use and bringing it home to his or her own
garage. Theft has always been considered a dismissible offense.
Given the serious nature of the wrongdoing in this case and the
fact that the Claimant seems to attempt to justify his actions,
this Board cannot find that the Carrier acted unreasonably,
arbitrarily, or capriciously when it terminated his employment.
Therefore, the claim will be denied.
2
AWARD:
Claim denied.
Car r Member
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'PETE . MEYERS
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