CASE NO. 112

DOCKET N0. NEC-BMWE-SD-2510D


PARTIES: BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYEES
 TO
 DISPUTE: NATIONAL RAILROAD PASSENGER CORPORATION (AMTRAK)
 DISPUTE: Claim of the System Committee-of the Brotherhood:




2. The Claimant shall be reinstated to. service
 with seniority and all-other rights unimpaired,
 his record shall be cleared of the charges leveled
 against him, and he shall be compensated for all
 wage-loss suffered.
 FINDINGS:
 Claimant D. L. Ruby was employed by the Carrier as a trackman at
 Baltimore, Maryland. -.
 On July 7, 198_3,-the Carrier no ti=Pied-theClaimant of several charges brought against him which were later--amendedby letter dated July 17, 1989,--and--which read as follows:

Specification: On June 30, 1989, at approximately 5:00 p.m., in the vicinity of-Baltimore Passenger Station, you were observed placing- Amtrak material in the trunk of your personal vehicle. After one postponement, the hearing was held on August 1, 1989. On August 14, 1989, the Carrier notified the Claimant that he had been found guilty of all charges and was assessed discipline of dismissal in all capacities effective immediately. Thereafter, the Organization filed a claim on Claimant's behalf, challenging his dismissal.


this case and we find that there is sufficient -emidence_inthe record to support the finding that the Claimant was guilty of violations of Amtrak Rules of Conduct D and K. The record is clear, and the Claimant admits, that on the date in question the Claimant placed Amtrak material into the trunk of his personal vehicle. Although after this misappropriation, he then took the wire out of his vehicle and left it on Amtrak property, the Claimant's admission and the testimony of the witnesses- is sufficient evidence to support a guilty finding of the offense of misappropriation or theft. This Board rejects the organization's argument that since the Claimant did not actually remove the wire from the Carrier'-s property that he was not guilty of therule violations. We find that his action constitutes misappropriation which is prohibited by the rule.
 Once this Board has determined that thereis sufficient evidence in the 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 action to have been unreasonable, arbitrary, or capricious.
 In the case at hand, the Claimant had over 13 years of service with the Carrier.- Dur_ingthattime he had__onlybeen disciplined for absenteeism. Despite the fact that the offense-for-which the Claimant was found guilty is extremely serious, this Board believes that the action taken by the Carrier was unreasonable given the- length of service of the Claimant and his excellent disciplinary history. Therefore, this Board orders that the Claimant be restored to seivice as of March 5, 1990, but without back pay. The period that he was out of work should be considered a lengthy suspension, and he should be
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put on notice that any further wrongdoing could lead to discharge.

 Award
      Claim sustained in part. The discipline of the Claimant is


hereby reduced to a suspension terminating March 5, 1990. The

 Claimant is to be re rued o work but without back pay.

                      Peter R Mey~rs

                      Neutra Mem er


          Carrier Membe rganization Member


Date: 16-l-6Js

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