BEFORE SPECIAL BOARD OF ADJUSTMENT N0. 986
PARTIES: BROTHERHOOD
OF
MAINTENANCE
OF
WAY EMPLOYES
TO
DISPUTE: NATIONAL RAILROAD PASSENGER CORPORATION (AMTRAK) -
NORTHEAST CORRIDOR
STATEMENT OF CLAIM: "Claim of System Committe of the Brotherhood
that:
1. The dismissal of Trackman M. Green for alleged violation of
Rules 'K', 'M', and 'F-3' of Amtrak's Rules of Conduct was harsh,
arbitrary, and inconsistent with prior Carrier discipline and in
violation of the Agreement (System File NEC-BMWE-SD-2377D).
2. The Claimant shall be exonerated of the charges leveled
against him and he shall be reinstated in the Carrier's service
with seniority and all other rights unimpaired.
FINDINGS:
Claimant M. Green was employed as a trackman by Carrier. On
September 16, 1988, Claimant was instructed to appear for an
investigation in connection with the following charge:
"1) In that you allegedly submitted fraudulent material
requisition Form 2070's on 8/17, 8/27, 8/29, 9/9 at Penn Coach
Yard Material Storehouse, in Philadelphia;
2) In that you allegedly acquired two unreserved coach tickets
#3168176260 NYP/PHL and #3658057833 PHL/NYA with full intentions
of distributing them to a non-Amtrak employee.
3) In that you allegedly utilized material forms and Rail Travel
privilege card in a deceptive manner."
The hearing was held on February 13, 1989 and as a result
Claimant was dismissed. The Organization thereafter filed a claim on
Claimant's behalf challenging his dismissal.
This Board has reviewed the procedural arguments raised by the
organization and we find them to be without merit. The record reveals
that after the Claimant was charged with the wrongdoing his hearing
was promptly scheduled to be held-on September 28, 1988. The Carrier
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agreed to postpone the hearing on two occasions at the request of the
organization or the Claimant and it was finally scheduled to begin on
January 3, 1989. Because of a sudden death in the family of the trial
officer, the hearing was rescheduled for January 24, 1989. Because of
the unavailability of some of the Carrier witnesses, the investigation
was recessed and continued on February 13, 1989.
Given the facts of this case, this Board cannot find that the
Claimant's rights were prejudiced when the hearing was continued from
January 3, 1989 to February 24, 1989 as a result of the Carrier's
request, when the hearing had already been continued from September
28, 1988 until January 3, 1989 at the organization's or the Claimant's
request. This Board finds that the Claimant's rights were not
violated because of the delay in the hearing, since most of the delay
can be attributed to the Claimant.
With respect to the substantive issues, this Board finds that
there is sufficient evidence in the record to support the finding
that Claimant was guilty of submitting fraudulent material
requisitions and obtaining Company property without authorization.
The record reveals that the Claimant admitted his wrongdoing and guilt
of the charges at the hearing.
Once this Board has determined that there is 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 the
Carrier's action to have been unreasonable, arbitrary or capricious.
The action of the Claimant in this case amounts to theft. This
Board has held on numerous occasions in the past that theft is a
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dismissible offense irrespective of the length of service or previous
disciplinary record. This Board cannot find that the action taken by
the Carrier was unreasonable, arbitrary or capricious. Therefore, the
claim must be denied.
AWARD
Claim denied.
Y
Peter R. Meyers
Neutral Arbitrator
Carrier Member Or nization Member
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