Carman Allen was apprehended at work in the afternoon and taken to the special agents' office for an interview. During that interview he gave them permission to search his automobile, as well as his home. In looking over the trunk of the claimant's 1962 blue Chevrolet, the special agents found pieces of a cardboard box used to ship locomotive brass belonging to the carrier. In his company they went to his home, where a full case of six onegallon cans of Cities Service Koldpruf Anti-Freeze was found in a closet in his back bedroom.

When the special agents returned to the office with Carman Allen, he admitted stealing the anti-freeze from the Company. He also admitted stealing the eight locomotive journal brasses at 10:00 o'clock that morning. He signed a statement admitting these thefts. However, he refused to identify the "fence" to whom the brasses had been given. This made recovery of the stolen property impossible and although the special agents checked all of the junk yards in the vicinity, they were not recovered. Carman Allen authorized a deduction of $102.74 from the paycheck that was due him to reimburse the Carrier for the stolen locomotive brass.

Carman Allen was dismissed from the service of the carrier on September 8, 1964. This dismissal was given him in writing, and the writing stated that it was "for appropriating Company material for your own use from the Chicago, Burlington & Quincy Railroad Company at the 14th Street Coach Yard, which fact was discovered on September 4, 1964."

The claimant requested an investigation in accordance with the collective bargaining agreement. This investigation was held on September 14, 1964.

At this investigation the claimant admitted that the statement he had given the special agent was true in every respect. The board will note there is very little to this investigation, the transcript consisting of only seven pages, and complete admissions in every respect were obtained from the claimant at that time.

Under date of October 31, 1964, the local chairman of the carmen's organization filed a claim on behalf of former Carman Allen, requesting his reinstatement to this service. No allegation was made in this claim as initially filed that his dismissal was not justified; the local chairman in effect pleaded for his reinstatement as a matter of leniency.

When that initial claim was not granted, the claim was expanded on appeal by the local chairman, and a request for reinstatement for all lost wages, etc., was included. It is this expanded claim which has been progressed by the organization to the board.

POSITION OF CARRIER: The issue in this dispute is simply whether the carrier must extend leniency and reinstate Carman Allen, who has admitted his theft of Company property. The organization contends that permanent dismissal from the service is not justified in view of the claimant's long and faithful service, as well as his restitution for the property which he stole. From the handling given this claim on the property, it is obvious the brotherhood has never contended that Allen's dismissal was not justified.

The position of the carrier in this dispute is first, that no proper claim for pay is presently before the board, since it was not filed within 60 days

of the dismissal of former Carman Allen. With regard to his reinstatement the carrier insists that the leniency here requested is not the proper function of the National Railroad Adjustment Board. Furthermore, the offense of stealing company property is a capital offense which does not warrant the extension of leniency. In addition, the carrier insists that the claimant's long service, and the fact that he made restitution for the stolen locomotive brass, does not entitle him to his job back.

Rules 30 and 31 of the agreement made effective October 1, 1953, are the only applicable agreement provisions in this dispute. Rule 30 of the contract prescribes

"RULE 30.

(a) All claims or grievances must be presented in writing by or on behalf of the employe involved, to the officer of the Carrier authorized to receive same, within 60 days from the date of the occurrence on which the claim or grievance is based."

Under this provision, if the claimant or the organization believed his dismissal was unjust, it was incumbent that his claim be filed with the foreman who supervised Carman Allen within 30 days of the date of his dismissal. Rule 31 of the agreement is the discipline rule and the only portion of this rule applicable to the instant case reads—

“*** If it is found that an employe has been unjustly suspended or dismissed from the service, such employe shall be reinstated with his seniority rights unimpaired, and be compensated for wage loss, if any, suffered by him, resulting from said suspension or dismissal, less any amount earned during such period of suspension or dismissal."

Under this rule, the brotherhood has the obligation of proving that the dismissal of Carman Allen was unjust before it can successfully prosecute this claim.

There is no claim for compensation properly before this board. Attached hereto is a copy of the letter written by Local Chairman George Stearns through Gang Foreman C. Sekerka under date of October 31, 1964, which initiated this claim on behalf of former Carman I. T. Allen. The board will note from this exhibit that the local chairman filed this claim by stating

"After a careful study of the transcript, the committee feel that Carman, I. T. Allen cooperated fully with the Special Agents and that his years of service with the company should warrant condition for his return to service."

It will be noted that no pay was requested, and that in effect, the local committee merely asked for leniency on behalf of Mr. Allen.

When this request was not granted, the local chairman appealed by letter dated December 13, 1964 to District Master Mechanic J. R. VanNortwick. Of course, this appeal was not made within 60 days of the date of dismissal of Carman Allen, September 8, 1964. However, in this appeal the local chairman also added to his original claim

"I hereby request that Carman I. T. Allen be reinstated with compensation for all lost wages, seniority, pass and vacation rights restored from the date of dismissal. Hospital and Life insurance restored from the date of dismissal and that his record be cleared of the charges against him."

Since the claim for wages and other monetary benefits was not filed until 86 days after the date of Carman Allen's dismissal on September 8, 1964, there was no compliance whatever with Rule 30 of the agreement. If the brotherhood wanted to claim pay lost on behalf of Allen, it was required to do so within the time limit. Not having complied with the agreed-upon 60-day time limit, there should be no question that the matter of pay for time lost is not properly before this board.

Throughout the handling of this case on the property the brotherhood has made it clear that they sought leniency on behalf of Carman Allen. It is axiomatic that leniency is not a proper function of this board.

So that there will be no doubt that the organization's position has been that although Carman Allen was guilty of stealing company property, he should still be reinstated, we are attaching to this submission a copy of the last letter received from the general chairman under date of April 20, 1965. This letter is addressed to Chief Mechanical Officer R. E. Taylor, and it was written after the highest designated officer of the carrier had refused to reinstate Mr. Allen to service. It will be noted the general chairman stated

"During the entire handling of this case you have failed to recognize the long and faithful service rendered this company by Claimant Allen. Also, you have failed to recognize the sworn statement made February 10 by Mr. Allen that he would live up to all rules and regulations of this company, if returned to active service.

Mr. Allen has made full restitution of all the material allegedly stolen. Your stated fear, that the restitution of Mr. Allen would set a precedent, is unwarranted and in my opinion the permanent dismissal of this employe is not justified."

It is obvious from this, as well as all of the other handling, both written and oral, given this claim on the property, that the brotherhood only seeks reinstatement of Mr. Allen on any basis obtainable. They have never once alleged that his dismissal for stealing Company property was unjust, or was a violation of rule 31 of the contract.

The matter of leniency presupposes guilt on the part of the employe and a dismissal that complies in every respect with the contract between the parties. The board has always recognized that the granting of leniency is an exclusive function of management. This is particularly appropriate in stealing cases. No employer should be obligated to extend leniency towards someone who has stolen Company property.

A case in point is Second Division Award No. 1756 which involved a Pullman Company electrician who falsified a claim for pay for a trip which he did not actually make. The organization in seeking his reinstatement made a request for leniency before the board. The board held

SECOND DIVISION AWARD 1756

(IBEW v. Pullman, Referee Carter)

"Some intimation is made that this Board should, even if the dismissal of the claimant be sustained, reinstate him with seniority rights unimpaired without pay for time lost. We do not think so. The offense committed by this claimant consisted of obtaining eight hours' pay by false pretenses and a fraudulent attempt to secure twelve hours at overtime rates. This involves moral turpitude. The Carrier has a right to expect its employes to be honest whether they are strictly supervised or not. For the Board to restore an employe's position after he has been apprehended in defrauding the carrier is not justified. Employes make mistakes the same as everybody else and this Board has restored employes when the discipline appears to have served its purpose. But when the offense involves moral turpitude, the carrier and not this Board should determine whether the risks inherent in the reinstatement of such an employe are to be again assumed by the carrier." (Emphasis ours.)

Of course, this carrier alone should determine whether it wants to assume the risk of reinstating Carman Allen, who has been adjudged a thief. Certainly the organization should not foist such an employe back into our service.

On this railroad we had another case on the Third Division, involving a dining car employe who was apprehended for stealing two pounds of company owned butter. His organization progressed his case to the board, but reinstatement was not obtained. With regard to extending leniency toward him, the board held

THIRD DIVISION AWARD 8715

(JCDE v. CB&Q, Referee Weston)

"The Carrier may wish to review the punishment because of Claimant's employment record, length of service and other considerations. However, that is solely within the Carrier's discretion and we will not seek to substitute our judgment for its decision as to what disciplinary action should be adopted in the present case since we do not consider it arbitrary or capricious."

Neither should the Second Division substitute its judgment for that of the chief mechanical officer in this case, and order the carrier to reinstate Carman Allen on a leniency basis.

Also to be considered is the fact that stealing company property is a capital offense which does not warrant an extension of leniency in any circumstances. Although the organization has contended that since Carman Allen made a "clean breast" of all of the occurrences, and paid for the property stolen, he should be given special consideration, the board must consider the fact that he would not divulge the name of the "fence" who took the locomotive brass from him. In his statement to the special agent, Carman Allen had stated

"I met a guy who I had arranged to meet. I do not know this guy by name. I unlocked my trunk and put the brasses in the little

carts that he had. My arrangements with this man were that he would sell the brass and pay me half and would meet behind the Oklahoma Enco Station on Saturday at 12:00 noon with the money. These arrangements were made Wednesday, September 12, 1964 at 12:10 P. M. in front of Stark's Whse. on Canal Street."

The allegation that claimant did not know the man with whom he made arrangements to dispose of this stolen property is absolutely incredible. His refusal to disclose the name of this "fence" made recovery of this stolen property an impossibility. Locomotive journal brass is a very expensive piece of equipment, and one which is repeatedly stolen from all of the railroads in the Chicago area. The man who is providing a means of disposing of this stolen property is a much sought after character by all of the railroads' special agents in this area. If he could be apprehended, many of these thefts would cease.

It is also a fact that this respondent carrier has already extended a considerable amount of leniency toward former Carman I. T. Allen. He was guilty of grand larceny against this company, and no criminal complaint was filed against him. No attempt was made to send him to jail for this offense, in spite of the fact that he signed a statement acknowledging this guilt, and also stating that—

“*** I know it can be used in a court of law against me."

The brotherhood should not ask additional leniency in the form of reinstatement on his behalf.

In another case involving a carman on the Texas and Pacific Railway, it was obvious that the claimant who sought reinstatement was guilty of stealing five chickens and three and one-half pounds of butter belonging to the dining car department. There was an allegation in the record that the carmen's organization believed the penalty of dismissal should be mitigated by the Board. The Board held

SECOND DIVISION AWARD 1776

(Carmen v. T&P, Referee Wenke)

"Suggestion is made that dismissal is too severe a penalty and unreasonable under all the circumstances. The charges are of a serious nature and fully established. Carrier should not be required to be burdened with an employe who has such tendencies." (Emphasis ours.)

The Burlington should not be burdened with employes who are admittedly guilty of the tendencies demonstrated by former Carman Allen.

The same parties as are involved in this dispute were also before the board in a stealing case in Second Division Award 3590. In that case a carman had been apprehended while removing a saw and two coat hangers which he had taken from an empty box car. The stolen property was of considerably less value than that involved in this case. However, his claim for reinstatement was denied by the board, and the findings read