Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 27869
THIRD DIVISION Docket No. CL-27425
89-3-86-3-669
The Third Division consisted of the regular members and in
addition Referee Dana E. Eischen when award was rendered.
(Transportation Communications International Union
PARTIES TO DISPUTE:
(Trans-Continental Freight Bureau, Weighing and Inspection
( Department, South Pacific Coast Territory
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood
(GL-10125) that:
(a) Bureau violated the provisions of the current Clerks' Agreement
at Bakersfield, California when it removed Mr. J. M. DeLorenzo from service as
a result of a formal investigation held on July 10, 1985, and
(b) Mr. J. M. DeLorenzo shall now be returned to Bureau's service
and paid for all wages and loss of benefits commencing on June 5, 1985, and
(c) Any reference to the charges and the formal investigation shall
be removed from the personal record of Mr. DeLorenzo."
FINDINGS:
The Third Division of the Adjustment Board upon the whole record and
all the evidence, finds that:
The carrier or carriers and the employe or employes involved in this
dispute are respectively carrier and employes within the meaning of the
Railway Labor Act as approved June 21, 1934.
This Division of the Adjustment Board has jurisdiction over the
dispute involved herein.
Parties to said dispute waived right of appearance at hearing thereon.
In June 1985, Claimant, a Bureau employee since 1971, held position
of Traveling Inspector at Bakersfield, California. Under date of June 5,
1985, he received Notice of Charges and was suspended pending formal
Investigation as follows:
"You are hereby withheld from service from Position
No. 60, Traveling Inspector, Bakersfield effective
close of business Wednesday, June 6, 1985, pending
a formal investigation to be held in the
Superintendent's Office, 717 Market Street,
Form 1 Award No. 27869
Page 2 Docket No. CL-27425
89-3-86-3-669
Room 317, San Francisco, California, at 10:00 a.m.,
Tuesday, June 18, 1985, to determine the facts and
place the responsibility, if any, in connection
with the following:
Falsification of audit records including
fictitious signatures of which we have received
factual knowledge on June 4 and June 5, 1985
A-7438-Reliance Products Division, Oakland,
CA.
Date audit completed: 2-6-84
Falsification of signature of Lois Franmueller
A-6525-Metal Purchasing Company, Mulford, CA.
Date audit completed: 2-1-84
Falsification of signature of Carla S. Cunn
ingham
A-106-Del Monte Corporation, Plants Nos. 7 and
35
Date audit completed: 9-22-83
Falsification of signature of Max P. Sauer
A-106-Del Monte Corporation, Plant No. 8 -
Closed and empty 12-83
Date audit completed: 3-19-84
Falsification of signature of Re Canedera
A-1114-Safeway Stores, Preserving Plant, San
Leandro, CA.
Date audit completed: 2-3-84
Falsification of signature of E. 0. Nagel
A-4234-Simmons Company, Mulford, CA.
Date audit completed: 1-24-84
Falsification of signature of Mary E. Holston
A-2336-Pennzoil Company, Alameda, CA.
Date audit completed: 2-13-84
Falsification of signature of Ron W. Hagan"
Following agreed-upon rescheduling, a Hearing was held on July 10, 1985 and
thereafter Carrier found Claimant guilty as charged and terminated him. A
timely appeal was filed on procedural and merits grounds, which resulted in
Claimant's reinstatement to service without backpay on January 9, 1986, with
the appeal of the discipline and Claim for loss of wages and benefits progressed to this Board for d
Form 1 Award No. 27869
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We are met at the threshold of the case with the Organization's
motion to sustain the Claim on procedural grounds, namely that the Bureau
voided the discipline by noticing and holding the formal Investigation more
than twenty (20) days after acquiring factual knowledge of the occurrence of
the charged misconduct.
We note that the Notice of Discipline and Hearing dated June 5, 1985,
specifies individual instances of alleged misconduct, the earliest of which
was September 22, 1983, and the most recent dated February 22, 1984. In the
circumstances, the two and one-half year delay constitutes prima facie evidence of a violatio
it acquired first knowledge of these occurrences no earlier than mid-May 1985,
and, moreover, that it could not reasonably have acquired that knowledge
earlier.
Our review of the record persuades us that the Bureau has met the
burden of persuasion in this case. The evidence indicates that a Bureau
Auditor discovered the irregularities in an audit of Claimant's accounts in
March and April 1985. However, he did not report his findings to superior
Officers because he was an old acquaintance of Claimant and "did not want to
get him in trouble." In early June 1985, the Auditor was called to Chicago to
explain why he was behind in his reports and at that time, on or about June 4,
1985, he revealed to the Superintendent his audit findings regarding Claimant's 1983 accounts. We fi
Hearing dated June 5, 1985, is not untimely under the twenty-day time limits
of Rule 19(a). Thus we will decide this case based upon the factual record
before us on its merits.
At the Investigation, Claimant admitted forging signatures on all of
the accounts that he was charged with falsifying. Claimant testified in
mitigation that he had been trained and encouraged to "take shortcuts" including falsification of si
been taught. Claimant testified further that others, including the Auditor,
had been caught falsifying signatures in the past, but received only an oral
reprimand, whereupon he had been singled out unfairly for discriminatory
harsher discipline. Claimant's testimony on these critical points stands
virtually unrefuted by the Carrier, even though the Superintendent and the
Auditor were witnesses at the Hearing.
Based upon all of the foregoing, we shall direct the Bureau to reduce
the six-month suspension without pay to a suspension of thirty (30) days duration. Claimant shall be
5, 1985, to January 9, 1986, in accordance with Rule 19(f).
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89-3-86-3-669
A W A R D
Claim sustained in accordance with the Findings.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest:
Nancy J er - Executive Secretary
Dated at Chicago, Illinois, this 4th day of may 1989.