The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds that:
The carrier or carriers and the employee or employees involved in this dispute are respectively carrier and employee 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.
Prior to his termination on December 18, 1998, the Claimant had 26 years of service with the Carrier or its predecessors. He had 19 years of service as a Foreman in the Track Sub-Department. Prior to January 30,1996, the Claimant had been working as an extra gang Foreman on a surfacing gang at Kirkland, Illinois.
On January 30, 1996 the Claimant was removed from service. He was subsequently notified to attend an Investigation regarding alleged timeroll discrepancies during November and December 1995. The Investigation was held on February 16, 1996. On March 5,1996 the Claimant was notified that his employment was terminated for falsification of time on December 2 and 3,1995.
held in abeyance since April 2, 1996. The Claimant was notified to attend an Investigation on October 8, 1998 to develop the facts and circumstances involving these charges and to place responsibility, if any, regarding them. The Claimant remained out of service pending the Investigation.
for October 8 was postponed by mutual agreement of the Organization and the Carrier. He was also told by the Carrier that:
The Investigation was held on November 4 and 5 and concluded on December 4, 1998.
On December 18, 1998, the Claimant's services were terminated effective immediately. According to the Carrier, the evidence presented at the Investigation demonstrated that:
The Organization appealed the Claimant's termination in accordance with Rules IS and 47 of the Schedule Agreement. The Carrier denied the appeals and the dispute was progressed to the Board for resolution.
It is the Organization's position that this dispute is so procedurally flawed that it is unnecessary to consider the merits of this appeal. The Organization strenuously argues that the charges against the Claimant were untimely because the Carrier waited over four months after it became aware of the Claimant's purported misuse of rapid drafts before initiating charges. According to the Organization, this was a clear violation of Rule 18(b) of the Schedule Agreement.
The Organization further contends that the Carrier violated Rule 47 of the Agreement because AVP-Labor Relations Frankenberg never responded to its appeal. The Organization maintains that the wrong Carrier Officer (Manager Track Maintenance Howard) responded to the appeal. Form 1 Award No. 36167
In addition to these procedural errors, the Organization argues that the Claimant was also denied a fair and impartial Investigation because Hearing Officer King was involved in the Claimant's 1996 Investigation. Moreover, he did not render the decision in this dispute even though he was the Hearing Officer at the Claimant's Investigation.
Notwithstanding the Organization's strenuous objections, we do not consider the dispute before us procedurally flawed. The Carrier had the right to wait until its Investigation was complete before initiating charges against the Claimant.
Additionally, it was not improper for Manager Track Maintenance Howard to respond to the Organization's appeal because a copy of the appeal was sent to him by the General Chairman.
A reading of the Claimant's extensive Investigation convinces the Board that the Investigation was fair and impartial. The Hearing Officer showed no prejudgment toward the Claimant and allowed him wide latitude to respond to the charges. Furthermore, Rule 18 does not require the Hearing Officer to render the decision in a disciplinary proceeding on this property.
The evidence demonstrates that the Claimant used rapid drafts to pay for supplies he purchased for his railroad truck at Hilltop Gas and Save in Monroe Center, Illinois. On some occasions the rapid drafts exceeded the exact amount owed the station and the Claimant would receive small change back from the service station. He claims that he used this change to wash his railroad truck.
The Carrier maintains that its policy requires employees to use rapid drafts for the exact purchase price of supplies. They are not allowed to receive any cash back when writing rapid drafts, according to the Carrier. While the Claimant may have inadvertently violated this policy there is not a scintilla of evidence in the record before the Board that he used any monies he received from using rapid drafts for his personal gain. He insisted that all the change returned to him after using rapid drafts was used to wash the railroad truck assigned to him. His contention was never refuted. Accordingly, the Claimant's unintentional violation of the Carrier's policy regarding rapid drafts would not justify termination of his employment.
The Claimant admitted that he did not have a valid driver's license prior to February 2, 1994. In 1992, 1993 and prior to February 2, 1994, he operated a Carrier vehicle without a valid driver's license. This was not an insignificant violation. Form 1 Award No. 36167
Nevertheless, in view of the Claimant's 26 years of service with the Carrier and its predecessors, this offense would not justify his termination.
Based on all the foregoing, the Board finds that the Claimant must be reinstated to service with the Carrier with his seniority restored but without compensation for any lost wages.
This Board, after consideration of the dispute identified above, hereby orders that an award favorable to the Claimant(s) be made. The Carrier is ordered to make the Award effective on or before 30 days following the postmark date the Award is transmitted to the parties.