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.
Undisputed record evidence discloses that Claimant E. Horton, a 26-year employee was suspended without pay for 30 days on October 10, 2003 and disqualified from working in his position for one year after being found guilty of wrongly generating travel pay for himself and others in connection with his gang's move to a new location.
The facts underlying the dispute are largely uncontested. The Claimant, functioning as Assistant Foreman Timekeeper on SPG Curve Patch Rail Team 6XC1, was responsible for entering payroll information into the Carrier's timekeeping system for the week of August 3 - August 8, 2003. In that capacity he input travel time for himself and approximately 12 other employees claiming "standby service" performed in connection with his team's move from Brooksville, Florida, to Manchester, Georgia, over the weekend of August I - 3, 2003. The Carrier maintains that none of the employees for whom pay was authorized performed any services on the days for which pay was allotted on their time sheets. It thus takes the position that the Claimant's time entries were improper and fraudulent and that the discipline imposed was lenient under the circumstances.
The Carrier's charge letter of September 5, 2003 initially cited fraud, conduct unbecoming an employee and possible violations of CSX Transportation Rule 501. (Rule 501 does not appear in the record before the Board.) It is not entirely clear, however, from its notice of discipline dated October 10, 2003, specifically what violations it determined the Claimant was responsible for based upon the Hearing evidence as it simply informed the Claimant that, "You did pay yourself for time not worked."
The Carrier's records reveal that the Claimant entered straight time travel pay for himself and five other employees who had been designated to work as "chase men" or "followers" when other members of the Curve Patch Rail Team were Form 1 Award No. 37546
directed to drive company vehicles to the work site at Manchester, Georgia. Employees who actually drove the vehicles being moved were paid at overtime rates, and those payments are not in dispute. There is no question on this record but that neither the Claimant nor any of his five co-workers did no work during the hours for which pay was claimed. It is also plainly the rule in this and most industries that falsely claiming pay for time not worked is theft by fraud and, if established, warrants dismissal.
Here, however, there is more. The relocation of Curve Patch Rail Team 6XCI to new headquarters at Manchester necessitated transferring all gang vehicles and equipment to the new location. Five of those units were to be driven by the assigned Vehicle Operator, among them a truck which Foreman W. E. Hutto would drive. Hutto designated the Claimant as his "follower." And that is where the Carrier's case carves out a hole for concern.
The Board's discomfort is triggered by Foreman Hutto's testimony describing his intentions in asking the Claimant to serve as his "follow man." Although lengthy, for the sake of completeness we set forth that explanation substantially in full as depicted in the following colloquy between Conducting Officer D. L. Moss and Witness Hutto:
Foreman Hutto went on to explain that while he had no way of knowing whether the Claimant was physically trailing him, that information was irrelevant because, "I knew I had a man on standby, if I needed him." Accordingly, he approved paying the Claimant 12 hours and 45 minutes pay for standby time spent over the weekend, consistent with his understanding of past practice. He ffurther stated that while he lacked hard proof, he believed that a Supervisor likewise had signed off on the disputed time as required.
In that context, it seems difficult to credit in the Carrier's assertion that the Claimant engaged in deliberate, purposeful falsification of pay records. Rather, in our view the picture that emerges from this record is that of a 26-year employee with an exemplary record who had the inconvenience to have his time rolls reviewed by System Team Supervisor J. S. Vankirk, who declined pay for the days at issue because the Claimant had not actually traveled on the weekend of the gang move. Thus, whether compensation for such travel was, as the Claimant suggests, up to that time the Carrier's established practice is not dispositive. He believed it was, but more importantly, his Foreman thought it was because he believed he had asked the Claimant to do standby service.
The Carrier shoulders the burden of proof in a case in which it asserts dishonesty. Here we conclude it failed to carry that burden. Particularly in the face of the absence of any instructions, written, verbal or otherwise as to proper practice, the record in our view will not support the charge that the Claimant consciously and intentionally claimed time he believed he was not entitled to claim. If the Claimant was, or reasonably believed he was, subject to duty over the weekend of August I and remained on standby status relying on that misapprehension, he was entitled to be paid. If that understanding was mistaken, we favor the Organization's contention that the situation could have been more appropriately handled with a verbal admonition. Form 1 Award No. 37546
The Claimant's period of disqualification as Timekeeper has passed. In the event he suffered loss of pay or benefits for the period withheld from such service he shall he be made whole for such losses.
All references to the alleged violation shall be removed from the Claimant's personal records and he shall be made whole for the 30-day disciplinary suspension at issue.
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.