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.
The issue in this case is whether the Carrier violated the parties' Agreement when it refused to compensate a witness called by the Organization to testify at a disciplinary Investigation. When the case arose, the Claimant was regularly assigned to the position of Track Welder on Steel Gang 8501, a mobile gang, to which employee G7. Gonzales was also assigned. The Claimant regularly worked Piaht hnitr.v npr naV_ Mnndnv thrnnah Fridav any) rPnnrtPA to Qnnorvienr T.T Stowell.
By letter dated June 23, 2000, G. Gonzales was instructed to attend a Hearing Luaseu upon allegations that he had been dishonest in claiming pay for weekend travel in connection with trips that he had made to his residence and for which he was reimbursed pursuant to Article XIV of the BMWE National Agreement. The Notice of Investigation further advised Gonzales:
traveled to that location and appeared as a witness for Gonzales. Thereafter, the Claimant submitted an expense report claiming two days' pay; roundtrip mileage from Manteca, California, to Nampa, Idaho; and two days' per diem in connection with his appearance at the Hearing.
The Carrier refused to honor the Claimant's request, and on September 8, 2000, the Organization filed a claim seeking compensation for the Claimant due to hic of*nnAanrn at tho Tnlv 12 90(1!1 Anarina
The Organization contends that the Claimant was improperly denied compensation and reimbursement for expenses that he incurred in connection with ,n 1000. iris attendance at the investigation which was held on July 1J, GVVV.
Preliminarily, the Organization emphasizes that the General Chairman made a written request that the Claimant be allowed to appear at the Hearing at no expense to either Gonzales or the Claimant. According to the Organization, the Carrier never informed it or the Claimant that the request would not be granted. The Organization further argues that the Claimant received instructions from his immediate supervisor, Stowell, to report for the scheduled Hearine in Nampa, Idaho, and that Stowell advised him that he would be compensated for attending the Hearing. At no time was the Claimant told that he would not be compensated for presenting himself at the Investigation.
In response to the Carrier's contention that there has been a past practice on the Union Pacific of not compensating witnesses called by the Organization to testify at Investigations, the Organization asserts that such practice, if it exists, is irrelevant to the instant case. In the Organization's view, this dispute does not involve the Union Pacific Agreement. Rather, it involves the Agreement between the Southern Pacific Western Lines and the BMWE, effective October 1, 1973 (revised January 1, 1993) and the practice under that Agreement has been to compensate all employees who attend Investigations.
made it clear that Gonzales was entitled to representation pursuant to the Agreement and could summon whatever witnesses he desired, as long as such witnesses were produced at his own expense.
The Carrier further argues that there is no documentation in the record supporting the Organization's claim that it had agreed to cover the Claimant's expenses as a witness. It is clear that the Claimant was present at the Investigation to be a witness for Gonzales; the Claimant was neither asked nor directed by the Carrier to give testimony.
In support of its position, the Carrier cites Rule 41, which requires the Carrier to pay for witnesses who are requested by management to appear for the company. There is no contractual language that expands this obligation to witnesses called by the Organization. Moreover, while the Organization maintains that it was the vast practice for the Carrier to nav for witne.scPC rponestM by thr nronni7atinn the Carrier argues that any practice that might have occurred on the former Southern Pacific has no bearing on any matter pertaining to the Agreement in effect between the BMWE and the Union Pacific.
The Carrier submits that the Agreement is clear and very specific as to the circumstances when it must pay for witnesses. Furthermore, even assuming arguendo that the Carrier was required to call and pay for witnesses who were vital to the Investigation, in the instant case, the Claimant had nothing whatsoever to contribute. In the Carrier's view, the Organization, in effect, is asking the Board to hold that the Carrier must call any and all witnesses whom the Organization demands. Such a position makes no sense. The Carrier submits that it need call only those witnesses who are necessary for it to carry its burden of proof at the Investigation.
clear to Gonzales and the Organization that they were free to produce any witnesses they desired at the disciplinary investigation, but at their own expense. The Notice of Investigation, dated June 23, 2000, explicitly stated: "You are entitled to representation per the applicable Schedule Agreement Rule and may produce such witnesses as you desire at your own expense." At no time did the Carrier request that the Claimant attend the Hearing on July 13, 2000, and there is no credible r-_ , A , 7 XT_ 2^IQCC
evidence that anyone in management directed the Claimant to attend or promised that he would be paid for his time and expenses.
The Organization requested the Claimant to attend the Hearing, and it appears that it was the Organization that informed him that he would be compensated by the Carrier. At the Hearing, the Claimant acknowledged that he was there to serve as a "witness for the accused." When he was asked who requested hfo presence *rncnnnw ma of the Hearing, n Hil,,. n replied, a_i"either Mr (-nnvalne nv the TTninn
The Agreement does not contain any language requiring the Carrier to pay for the time and travel expenses of the Organization's witness. Rule 48(6) states:
By virtue of the clear language of Rule 41, the Carrier is required to pay for only those witnesses who are requested by management to appear as witnesses for the company. If the parties had mutually intended for the Carrier also to pay for the Organization's witnesses, presumably they would have set forth that intent in clear language. Given the absence of any contractual language supporting the Organization's position, if the Board were to sustain the instant claim, it would improperly be adding new terms to the parties' Agreement through the grievance arbitration process.
While the Organization referred to the alleged practice of the Southern Pacific Western Lines in regard to paying Organization witnesses who testified at Investigations, it failed to show any such past practice on Union Pacific property. Furthermore, any practice under the Agreement between the Southern Pacific Western Lines and the BMWE is irrelevant because the disputed incident occurred under the Union Pacific-BMWE Agreement.
This Board, after consideration of the dispute identified above, hereby orders that an Award favorable to the Claimant(s) not be made.