YARDMASTER DEPARTMENT AWARDS

AWARDS 91 - THEFT OF CARRIER PROPERTY

AWARD # REFEREE RAILROAD
Second Division Award 12140 Zusman Duluth Missabe & Iron Range
Second Division Award 12573 Muessig Grand Trunk Western
Third Division Award 29242 Mason UP (Former MP)
Third Division Award 29334 Wesman National RR Passenger (Amtrak)
Third Division Award 29589 Simon Burlington Northern (FWD)
Third Division Award 29604 Wesman Illinois Central
Third Division Award 30057 Simmelkjaer CSXT (Former L&N)
Third Division Award 31052 Hicks Kansas City Southern
Third Division Award 32004 Malin Consolidated Rail Corp.
Public Law Board No. 6598, Awd. 1 Binau Canadian National - GTW

Second Division Award No. 12140 (Zusman)

"With respect to the testimony and evidence of record we find that it is adequate to support the conclusion that the Claimant had materials in his possession that belonged to the Carrier. After a long and detailed study of this voluminous record we conclude that the nuts and bolts were sufficiently shown to be Carrier materials. We also conclude that the Claimant put the materials into his vehicle. The Manager of the Car Shop was drawn to the truck due to his limited observations. The evidence indicates that the new nuts and bolts which were found in the Claimant's truck were identical to stock items. Other exact bolts were found in an open locker. When asked at the time of discovery where the bolts came from, Claimant responded, `I'm not going to say.' During the Investigation, Claimant's witness stated that he gave the boxes to the Claimant. A careful review of all testimony is convincing that the Claimant's explanations and supportive testimony are not sufficient to overcome Carrier's evidence. This is not simply an issue of credibility wherein the Claimant's witnesses (particularly Mr. Westberg, his long time neighbor) are weighed against the Carrier's. If it were only credibility, this Board would have no authority to resolve the instant Claim as credibility decisions rest with the Carrier. Herein, the Board finds a large body of circumstantial evidence all pointing to Carrier's ownership of materials found in the Claimant's truck. Even without a witness to the removal of the boxes or their placement in the truck, we are convinced that the conclusion of theft is clearly supported. In view of this record and having considered all issues at bar including the procedures, Hearing Officer's conduct, invoice, markings on the box, gloves, testimony, photos and ownership of the bolts, we conclude that the discipline imposed was fully supported. Claimant's dismissal will not be disturbed. The suspicious events suggesting theft were proven.

"Claim denied."

Third Division Award No. 29242 (Mason)

". . . the testimony of Claimant, as well as the testimony of three other Signal Department employees plus the testimony of the Special Agent who investigated the incidents, clearly and convincingly establish that Claimant did, in fact, use the `Gelco Gas Drafts' to purchase gasoline for his personal vehicle and then attempted to coverup this action by entering false information on the gas draft receipts. These deliberate acts, admitted to by Claimant during his testimony, constituted a violation of the fundamental trust which must exist between an employee and his employer and thereby subjected himself to severe discipline.

"As to the extent of the discipline assessed, while we are troubled by the fact that a 21-year employee who has achieved a Foreman's rank would jeopardize his employment status by the cavalier actions which are described in this case record, this Board has no alternative but to deny the claim as presented. Claimant knew, or should have known, that alternatives were available to him to seek and receive reimbursement for the use of his personal vehicle. Instead of staying within the system, Claimant with deliberate action chose to go beyond the bounds of reason and then compounded his violation by falsifying receipts. Dismissal is not excessive discipline for such actions."

Third Division Award No. 29334 (Wesman)

"It is a well-established arbitration tradition, and this Board has held in past Awards, that theft of any magnitude is a serious breach of an employee's responsibility to his employer. Nothing on the record before us suggests that the Board should modify Carrier's assessment of discipline in this case."

Third Division Award No. 29589 (Simon)

"Having found substantial evidence to support the Carrier's charge, we turn to the quantum of discipline imposed. Theft of company property has almost universally resulted in discharge in this industry. This Board has been reluctant to draw distinctions based upon the relative value of the property stolen. Thus, we have upheld dismissal in cases involving the theft of scrap material or a few gallons of gasoline. We see no reason to modify the Carrier's decision in this case. . . ."

Third Division Award No. 29604 (Wesman)

"A review of the evidence presented convinces this Board that the Claimant knowingly and willfully took property from the Carrier with the intention to sell it for personal gain. Although Claimant denied that he told the Special Agent he intended to sell the wire to a scrap dealer in Gary, we found the Special Agent's narration of that conversation to be straight-forward, consistent and credible. Further, he would have no reason to enter false testimony. Claimant, on the other hand, in hopes of saving his job, had ample reason to testify in a less than truthful fashion.

"The fact that the Claimant is a long-time employee of the Carrier makes the circumstances of this case particularly unfortunate. Nevertheless, as we have noted in numerous Awards, theft of Carrier property constitutes grievous misconduct. In particular, we noted in Third Division Award 29148:

"`The circumstantial evidence of Claimants' intent to steal is so incriminating that their illegal motivation may be inferred. The fact that the action was discovered before Claimants could carry their misdeed to its intended conclusion does not mitigate the seriousness of the misdeed.'

"In light of the foregoing, we see no reason to disturb Carrier's assessment of discipline in this case."

Second Division Award No. 12573 (Muessig)

"The transcript of the Hearing shows that the Claimant admitted that he had taken brass and plywood that belonged to the Carrier. Therefore, in this instance, the only remaining issue before the Board is the question of the quantum of discipline assessed by the Carrier, because the Board is not empowered to grant leniency.

"This Board, as well as others in this industry, have rendered numerous Awards upholding the dismissal of employees for dishonesty. The Carrier has the right to expect that its employees will not steal and will be honest. It has no obligation to retain in its service those, who by their own admission, are not."

Third Division Award No. 30057 (Simmelkjaer)

"Numerous Awards have been established that theft of company equipment is a very serious charge, one which irrevocably undermines the employer/employee relationship and barring an abuse of managerial discretion warrants dismissal from service. As noted in Third Division Award 24567, '[d]dishonesty in any from is a serious offense and theft or embezzlement has long been considered a dismissal offense.' It was similarly held in Second Division Award 7570 that 'the Carrier has the right to expect honest employees and has no obligation to retain in its service those who by their own admission, are not.'

"It has been held that an employee's length of service cannot be the basis for mitigation of penalty unless some doubt exists as to the proof of guilt. In the instant case, Claimant's unblemished record of 18 years cannot overcome the substantial evidence adduced by the Carrier. Finally, the Board, in its appellate function, is precluded from dispensing leniency. See Second Division Award 9140."

Third Division Award No. 31052 (Hicks)

"Suffice to say, Carrier has sustained the burden of proof necessary to substantiate the charges it had filed against the Claimant. Even a spotless, squeaky clean record cannot be considered as a reason to lessen the discipline assessed because of theft. Theft is theft regardless of who commits it and it is a serious matter warranting the ultimate discipline."

Third Division Award No. 32004 (Malin)

"On the property and before this Board, the Organization has maintained that Claimant possessed these items in anticipation of his imminent return to active duty. Carrier did not credit his defense and we see no reason to disturb that finding. Indeed, the evidence does not reasonably permit a finding to the contrary. First, Claimant admitted to the Block Operator that he was stealing the items. Second, there simply is no evidence that Claimant's return to active status was imminent. On the contrary, the only evidence in the record was to the contrary. Third, even if Claimant was expecting to return to active status, there was no reason for Claimant to have the items that were found in his home. Fourth, the items that Claimant had in his home were in such large quantities, that they could not possibly have been intended for use upon return to active status.

The evidence against Claimant was not only substantial, it was overwhelming. The offense was extremely serious. There was no evidence of any mitigating circumstances in this record. Carrier simply is not required to employ progressive discipline in an effort to rehabilitate a thief. The claim will be denied.

Public Law Board No. 6598, Awd. 1, Case 1 (Binau) (UTU/Canadian National - GTW)

"The claimant testified that he called Waddle's, a mobile tire service company, to repair a damaged tire on his vehicle on January 17. He further testified that he provided Waddle's with information that stated one of the Carrier's vans were being repaired including the VIN number and license plate number of that vehicle. He stated that he signed for the repair made to his vehicle using this false information."


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Last modified: April 29, 2005