UNION PACIFIC AID PA

      (FORMER CHICAGO TIC WESTERN. LISP TI

                  . . COMPANY)


                      Case o.2


                  Award No. s2 4 0


STATEMENT CLAIM: "Claim of the System Committee of the
 Brotherhood that:

        1. The dismissal of Trackman H. W. Janvrin for his alleged dishonesty in claimig travel, allowance for travel he did not make during the weekend of October 10,11, and 12, 2003 was without dust and sufficient cause, i violation of the Agreement and based on unproven charges (System File 2R_9492D/ 13 89549D).


      2. As a consequence of the violations referred to in Part (1) above, Trac

. . Janvrin shall `. . . be returned to active service with all seniority rights restored, compensated for all lost time and wages, medical benefits he was deprived of, vacation rights restored, credit for months of service with the Railroad Retirement Board, any differential in pension benefits if Claimant ends up with a reduced retirement compensation due to not being afforded an opportunity to get 3 60 months of service and y other benefit not herein mentioned that any active employee would receive while working,' and he shall have his record cleared of the incident." . FINDINGS:
 At the tile of the events leading up to this claim, the Claimant was
 assigned to work for the Carrier as a Trackman on Gang 2954.
 y letter dated October , 2003, the Claimant was ntied to appe for
 ormal investigation ear'ing to develop the facts lace responsibility, if
 t r.

      any, in connection with the Claimant's alleged dishonesty when he claimed the weekend travel allowance reimbursement for travel that the Claimant allegedly did not snake. After a postponement, the hearing was conducted on November 19, 2003. By letter dated. November 28, 2003, the Claimant was notified that as a result of the hearing, he had been found guilty as charged, and he was being assessed Level 5 discipline, dismissal from the Carrier's service. The Organization filed a claim challenging the Carrier's decision, and the Carrier denied the claim.

      The Carrier initially contends that the Claimant was afforded all elements of due process in accordance with the Agreement. The Claimant receive adequate notice of his investigation, was allowed ample representation, and was able to present his own witnesses, as well as cross-examine all of the Carrier's witnesses who were preset at the investigation. The Carrier points out that the Organization's procedural objections are based on u ~ orted inaccurate charges in the notice of investigation and the Carrier's alleged failure to charge the Claimant within ten days of knowing about his rule violations. The Carrier insists that these procedural objections are not persuasive. The Carrier points out that the notice o_ investigation correctly reflects the Claimant's travel claim. If the Carrier erred in describing the distance that the Claimant fraudulently claimed, this error does not .

      o to the heart of the charges d therefore would not require the overturning of the discipline imposed in this case.


          As for the argument tat a investigation was held outside ten days of

SISA gay

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date that the Carrier knew about the Claimant's .rule violation, the Carrier insists
 that this objection also must fail because the investigation initially was scheduled
 for October 29, 2003, seven days from the date, October 22, 2003, when the
 Carrier determined that there was reasonable cause to charge the Claimant. The
 Carrier maintains that it could not have charged the Claimant without list
 determining whether his actions provided enough reasonable cause to bring
 char ges. This determination was made on October 22, 2003, after the conclusion
 of an investigation into the matter. Moreover, the C . er points out that Rule 1
 allows the Carrier to start tolling the time limits for charging employee from the
 ate of notice. The Carrier argues that it correctly charged the Claimant, use
 charges were brought with Rule I(A)'s ten-day limit.
    The Carrier goes on to assert that there is no basis for the e Organization's

argument that the transcript does not support the discipline imposed upon the
 Claimant. The Carrier emphasizes that the Claimant admitted that he never made
 the claimed trip to Utah, and a also ante to clalming mileage for e ' that
 e did not take. The Carrier's investigators also observed the Claimant in
 Webster, Iowa, on October l o, 2003, when was supposed to be on his way to
 The Carrier points out that the Claimant never r produced any evidence of his
 trip to Utah, and a never attempted to refute the Carrier's evidence that e i not
 travel to Utah.. The airier maintains that it is well established on tproperty
 that n admission of wilt provides enough evidence to support y charges against
 the employee. The Claimant's admissions in this case, when combined with t

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substantial unchallenged evidence of his dishonesty, provide more than enough evidence to meet the Carrier's burden of proof.
      The Carrier goes on to contend that once an arbltral panel verifies that

substantial evidence supports a finding of guilty, the panel lacks authority to
 overturn the level of discipline assessed, even if the discipline may seem harsh,
 unless there is a sufficient demonstration that the discipline 'was arbitrary,
 capricious, or an abuse of Carrier discretion. The Carrier insists that the discipline
 at issue was not arbitrary, capricious, or an abuse of Carrier discretion. The
 Carrier emphasizes that the Level discipline assessed in the Grievant's case was
 correct and in accordance with the Carrier's UPGRADE Policy. The Carrier
 asserts that dishonesty never is condoned on the property, especially where the
 dishonest act infringes on the Carrier's resources. The Carrier further argues that
 the Board consistently has upheld dismissal in similar cases involving dishonesty.
 There is no evidence of arbitrariness or capriciousness in connection with the
 assessment of discipline in a instant case, so there is o reason fort this discipline
 to be overturned.
 The Carrier ultimately contends that the instant claim. shout be be denied in
 its entirety.
 The Organization initially contends that Rule 1 () specifies that the hear' shall bet within ten calendar days of the offense or the date on which e C ier has knowledge of the occurrence to a investigated. . The Organization

 mhashes that this language is story, so e, Carrier had olce but t
 S13A 90~q,
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 hold the hearing within ten days of the alleged offense or when it had knowledge
 of the occurrence. The Organization asserts that the record shows that the Carrier
 had reviewed the investigator's report and video and had determined to charge the
 Claimant on or prior to October 16, 2003. The Carrier therefore failed to comply
 with Rule 19(A) when it scheduled the investigation for October 29, 2003, outside
 the Rule's ten-day time limit. .
 The Organization points out that under prior Board Awards, the Carrier bears the burden of showing extenuating circumstances, if any, once the Organization has made a prima facie showing that this time limit has been violated. The organization asserts that it is disingenuous for the Carrier to argue that it did not determine to remove the Claimant until after the investigator completed his interviews on October 22d. The organization points out that Hanner testified that he was instructed to remove the Claimant from. service around October 14 or 15. Moreover, the Carrier had knowledge of the incidents issue when Ring reviewed the investigator' s report and video during the week o October 13. The Organization argues that on this record, it is evident that the Carrier violated the time limit set forth in Rule 19(A).
      The Organization goes on to contend that the Carrier failed to meet its

burden of proof with regard to the charge against the Claimant. The record
 demonstrates that the investigator did not see the Claimant 'after 5 :p.m. o
 Friday, October 10, 2003. The Organization insists s that the Carrier simply is
 speculating as to whether the Claimant returned to ®s residence that weekend o
 not. The Organization maintains that speculation is not proof, and the Carrier has failed to meet its burden of proof in this case.
 The Organization ultimately contends that the instant claim should be sustained in its entirety.
 The parties being unable to resolve their dispute, this matter came before this Board.
 This Board has reviewed the procedural arguments raised by the Organization, and we find them to be without merit. The record reveals that the Carrier did not conclude its investigation into the charges against the Claimant until October 22, 2003. The investigation was scheduled for October 9, 2003, which is less than the ten-day limit set forth in Rule 19(a).
 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 vas guilty f dishonesty for filing a claim for a travel allowance for travel that he did not make over the weekend. of October 10, 2003. A thorough review of the lengthy transcript in this case makes it clear that the Claimant did. admit that he did not make the claimed trip to Utah over that weekend and a also admitted at o claimed mileage from the Carrier for that trip that a did not take. There is further evidence from the investigators who observed the Claimant in Iowa on October 10, 2003, when a claimed he was on his way tUta. The laimant was requested on numerous occasions throughout the hearing to provide y evidence that he was in Utah on the dates for which a claim travel expense

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    an a was unable to do so.

    Once this Board has determined that there is sufficient evidence in te record to support the guilty finding, 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 actions to have been unreasonable, arbitrary, or


      . .

    car~clous.


        This Board recognizes that the Claimant has twenty-nine years of seniority.

    e also recognize that he has no other discipline on his record. However, the

    offense of hiothe Claimant was clearly proven guilty amounts to dishonesty

    and theft. This Board has stated on numerous occasions tt theft is theft at

    a single incidence of that serious offense can lead to a dismissal, even after

    numerous years with the Carrier.

    Liven the seriousness of is offense coupled with the evasive an.

    dishonest answers that the Claimant gave during the course of the hearing, this

    Board cannot fend that the Carrier's action in to terminatin~,,- the Claimant was

    without just cause or unreasonable, arbitrary, or capricious. Therefore e the claim

    must denied.


7
 E t h

 O~;(~IZATION l~tER

 DATED:

 The claim is denied.

 PETE R. MEYE

 Neut~f~er

 CARRIER 1V~EMB~R