Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 37793
Docket No. MS-38046
06-3-03-3-458
The Third Division consisted of the regular members and in addition Referee
Robert Richter when award was rendered.
(United Transportation Union
PARTIES TO DISPUTE:
(San Joaquin Valley Railroad
STATEMENT OF CLAIM
:
"A claim and grievance for San Joaquin Valley Railroad employee
Nathan Zoolakis for reinstatement to service with seniority unimpaired
and compensation for all time and credits lost and that all reference to
this incident be expunged from his personnel record."
FINDINGS
:
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.
Parties to said dispute were given due notice of hearing thereon.
On May 5, 2003 the Carrier dismissed the Claimant from its service twice. One
dismissal was a result of an Investigation held at 10:00 A.M. on April 15, 2003. The
second dismissal was the result of an Investigation held at 3:35 P.M. on the same date.
The first Investigation was for falsifying the time sheet and the second was for
insubordination.
The two letters of discipline are as follows:
Form 1 Award No. 37793
Page 2 Docket No. MS-38046
06-3-03-3-458
"Reference formal hearings conducted in the office of the General
Manager, San Joaquin Valley Railroad, 221 North "F" Street in Exeter,
California on Tuesday April 15, 2003 in connection with your alleged
failure to abide by operating rules and regulations adopted and published
by San Joaquin Railroad.
This is to advise that after careful review of the transcript of this
investigation, it was determined that you falsified your timesheet while
working as Dispatcher on December 29th, 2002, resulting in the violation
of the following parts of the General Code of Operating Rules and
RailAmerica, Inc. Employee Handbook rules:
GENERAL CODE OF OPERATING RULES
Rules, Regulations and Instructions (1.3.1)
Carrying Out Rules and Reporting Violations (1.4)
Conduct (1.6)
Reporting and Complying with Instructions (1.13)
_RAILAMERICA. INC. EMPLOYEE HANDBOOK
Section IV: Work Conditions and Hours
Time Reporting
As a result of the violation of the aforementioned rules and regulations,
you are hereby dismissed from service of the San Joaquin Valley Railroad
Company."
and:
"Reference formal hearings conducted in the office of the General
Manager, San Joaquin Valley Railroad, 221 North "F" Street in
Exeter, California on Tuesday April 15, 2003 in connection with your
alleged failure to abide by operating rules and regulations adopted and
published by San Joaquin Railroad.
This is to advise that after careful review of the transcript of this
investigation, it was determined that your actions towards your
supervisor during a meeting on January 7, 2003 while you were
performing your duties as Dispatcher constituted insubordination,
Form 1 Award No. 37793
Page 3 Docket No. MS-38046
06-3-03-3-458
resulting in the violation of the following parts of the General Code of
Operating Rules and RailAmerica, Inc. Employee Handbook rules:
GENERAL CODE OF OPERATING RULES
Rules, Regulations and Instructions (1.3.1)
Carrying Out Rules and Reporting Violations (1.4)
Conduct (1.6)
RAILAMERICA, INC. EMPLOYEE HANDBOOK
Section I: Conduct Towards Fellow Workers
As a result of the violation of the aforementioned rules and regulations,
you are hereby dismissed from service of the San Joaquin Valley Railroad
Company."
In Case No. 1, the Claimant was charged with stealing time by claiming a meal
period for December 29, 2002. On January 7, 2003 a meeting was held to discuss the
matter. The Claimant felt that he had been told not to take lunch and as such was
entitled to the additional 20 minutes in accordance with the Schedule Agreement. The
record is void of any evidence that the Claimant was trying to "steal" money. It was a
simple time claim. The position of the Organization will be sustained.
In Case No. 2, the Claimant was found to be insubordinate. The Carrier argues
that the claim was never appealed by the Organization on the property.
On August 12, 2003 the General Manager of the Carrier met with the General
Chairman and told him that Case No. 2 had not been appealed by the Local Chairman.
On August 13, 2003 the Carrier advised the Local Chairman that no appeal had been
received.
In a subsequent meeting between the General Chairman and the General
Manager the Organization offered to provide a copy of the appeal, but the Carrier said
it was not interested in seeing the copy because it was standing by its position that the
claim had not been appealed. A copy of the letter is made part of this record. The
Organization submitted an Express Mail receipt dated June 30, 2003 with July 1, 2003
as date of delivery.
The Express Mail receipt does not indicate what was in the mail. However, when
the General Chairman offered to produce a copy of the appeal the Carrier's refusal
Form I Award No. 37793
Page 4 Docket No. MS-38046
06-3-03-3-458
puts it at peril. Whether a claim is timely presented or not, the Carrier is obligated to
receive such and decline such appeal for whatever reason it feels fit to do so. It should
be noted that both appeals were dated June 17, 2003.
As to the merits of Case No. 2, there is no evidence that the Claimant was
disobedient to authority in the January 7, 2003 meeting.
It is clear from the record of both cases that the Carrier failed to meet its burden
of proving that the Claimant violated its Rules.
However, there is doubt as to the timely appeal for Case No. 2. The Claimant
has seven years of service with no previous discipline. By the same token we cannot
totally ignore the alleged time limit violation.
Therefore, taking into consideration the possible time limit violation, the Board
will restore the Claimant to service with seniority unimpaired, but without pay for time
lost. '
AWARD
Claim sustained in accordance with the Findings.
ORDER
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.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Dated at Chicago, Illinois, this 31st day of May 2006.
NRAB Third Division
Award Nos. 37793 & 37794
Docket Nos. MS-38046 & MS-38047
Labor Members' Dissent
In Docket No. MS-38046, the Neutral Member of the Board found "The record is
void of any evidence that the Claimant was trying to "steal" money. It was a
simple time claim." In Docket No. MS-38047, the Neutral Member of the Board
found "there is no evidence that the Claimant was disobedient to authority in the
January 7,
2003
meeting." In summary of the two cases, Neutral Member
concludes, "It is clear from the record of both cases that the Carrier has failed to
meet its burden of proving that the Claimant violated its rules."
In spite of exonerating claimant of all wrongdoing, Neutral Member fails to hold
Carrier accountable for its actions based upon its pleading of procedural violation.
The Labor Members are dismayed that the conventional level of proof is not
acceptable in this case.
The initial appeal was submitted to the Carrier by Local Chairman's letter dated
June 15,
2003.
Carrier's receipt of Local Chairman's letter of appeal is confirmed
by United States Postal Service Request Proof of Delivery at
1:33
p.m., July 1,
2003,
Attachment 1 of Organization's Brief. Carrier authored letter dated August
13, 2003
to Local Chairman in which it was alleged that no appeal had been
received; therefore, the discipline will stand. Upon receipt of his copy of the
August
13
letter, General Chairman notified the Carrier that proof of delivery was
available and he could provide a copy of the letter of appeal. Not only did the
Carrier not request to see the proof of delivery, but it refused to accept a copy of
the letter of appeal. All further response from the Carrier was to deny handling of
the appeal.
It must be considered, why did the Carrier initiate its August 13 letter declaring .
that it had not received an appeal? When confronted by the General Chairman that
proof a delivery was available, why was the Carrier not interested? Why did
Carrier not request to see the proof? When the General Chairman offered to
provide a copy of the letter of appeal, why did the Carrier refuse acceptance?
No Carrier reports to the Organization that it did not receive an appeal unless it is
concerned about a timely response to that appeal. In such case, when the
Organization confirms proof of delivery, the Carrier requests proof of delivery and
then makes a timely response.
Carrier's actions in instant case are completely out of character. It is obvious that
Carrier's position is a sham. Carrier had dismissed claimant on two separate
issues and obviously had determined that it could further insure its dismissal of
claimant by creating a procedural issue, thus having it both ways. The Neutral
Member bought into this sham and relieved Carrier of its liability, returning
claimant to service without pay for time lost. Like the Carrier's procedural issue,
the decision herein is a sham.
The findings in this Award are unacceptable.
~ ~~.w~- i i v i u
Kim N. Thompson, Labor ember