The suspension pending the Investigation. The Organization's argument that the Claimant's suspension was not justified because the Claimant's admitted action was a mere mistake, not theft, is not persuasive. One would not have a basis for determining whether the action was error or theft until a full and fair Investigation had been completed and a justified conclusion drawn. According to the Roadmaster's stated understanding of what was reported to him, the allegation concerned an action that -if proven -indicates that theft had taken place. Theft would be a "serious infraction of Rules" and could justify dismissal. Suspension pending an Investigation of a charge of theft would be a valid action.
In h is September l, 2010 response to the filing of the claim, the General Manager of the Twin Cities Division w rote: "'Mf . House was withheld from service pend ing investigation d ue to the serious natu re of the allegation. ,. (Emphasis added)
However, depending on which version of the report one employs, one is forced to consider that the Carrier waited eight or ten days - the period from the date of notice (June 29 or July l) until July 9 - to remove the Claimant from service. Alt hough the allegation of theft would justify suspension pending Investigation, the fact that the Carrier waited more than a week before withholding the Claim ant from service undermines its argumen t that such action was justified.
The timing of the investigation. The letter instructing the Claimant to attend the lnvestigation and the dismissal letter both state: '4Carrier's date of first knowledge of this th eft and dishonesty is July l, 2010." The implication of these assertions by the Carrier is that the notice clock provided in Rule 40 (A) did not start ticking until the Road m aster checked the computer on J uly 1. This assertion is contrary to what is stated in the Carrier's Submission to the Board:
"On the morning of Tuesday, June 29, Mr. House entered his crew's time on the computer. For Friday, .June 25, for himself, he showed 8 hours straight time, 1 hour per diem and 4 hours overtime. As he was doing this, another mem ber of the crew, Kevin Gustafson, was sitting near by, watching Mr. House as he did the input. That afternoon, after work, Kevin Gustafson called the Road master, Greg Mackley, alleging that Mr. House had put in four hours overtime for the previous Friday that he wasn 't entitled to." (Emphasis added)
The Carrier's argument that the "offense wasn't established until . . . [the Road master] reviewed the timeroll entries, for that was when 'information was obtained by an officer of the company' and that occurred two days later on July l," is without merit. To accept this approach is to modify Rule 40 (A) to mean that the time limit in Rule 40 (A) - which is, after all, a limit on management - may be unilaterally extended by the Carrier merely by having an Officer of the Company do nothing for several days after receiving an allegation of wrongdoing and then, at a time of that person's choosing, review official records.
The Investigation was held on .July 15, 2010. That date is 16 days from .J une 29; the date inform ation was obtained by an Officer of the Carrier. Ru le 40 (A) req uires tha t the Investigation be held ". . . not later than fifteen (15) days . . . from the date in formation is obtained by an officer of the Company . . . and except as provided in Section B of this rule."
The clea r implication of Section B of the Rule is that in cases where an employee is held out of service, an interval of fewer days is allowed before th e Investigation must be held. Hold ing off suspension for more than a week after Ruic 40 (A) notification docs not provide days before the Investigation is held.
states:
The Board finds that the Investigation was untimely. Rule 40 (J) specifically
"If an investigation is not held or decision rendered within the time limits herein specified, or as extended by agreed-to postponement, the charges against the employe sball be considered as having been dismissed."
Accordingly, tbe charges against Claimant J. House shall be considered as havin g been dismissed.
The Su bsta ntive Concern
Given the opprobrium contained in the cbarge of theft, dismissal of the charges beca use of a proced ural shortcoming is not sufficient redress for the Claim ant if the cbarge of theft lacks substantiation. It is for tbis reason tbat we proceed to discuss the cbarge itself.
The remaining question is wbether tbe Claimant's computer entry tbat be had worked eight straight time and four overtime bours on June 25, 2010 was done pu rposefully or in error.
In bis September 1, 2010 response on behalf of the Carrier to the filing of the appeal, the General Manager of the Twin Cities Division wrote:
"Tbe principal's culpability was evident tbroughout the transcript. His claim for four hours overtime on June 23, 2010 was outright
theft of BNSF monies. The testimony offered by two of his coworkers established the fact that Mr. House did not perform any service other than the four to five hours required to undergo a physical examination that began at 9:00 am on the date in question; including one and one-half hours travel time to and from the clinic.
Theft is among the most egregious offenses an employee may perpetrate against his employer and dismissal for such is supported by numerous awards."
Material from the Carrier conflates two separate aspects of what took place on Friday, June 25, 2010: the claim for eight hours' straight time pay and the claim for four hours of overtime. The record establishes that it was accepted practice to consider the physical examination at issue in this case as a full eight-hour day of work regardless of the actual time involved. Thus, the sole question in this case is the entry, admitted by the Claimant, which reported that he, like the other members of his crew, had worked four hours of overtime on June 25, 2010.
Although the following passage from the Carrier's Submission assumes the Claimant's guilt, it is helpful in that it states the two ways that the incorrect entry could have been made:
"So there were two ways that he could have input his attempt to secure 4 hours overtime for himself for June 25: he could have put that in his own entry, with a starting time and a reason code; or he could have called up the pre-population of the field with the four crew members, put in the starting time, and the ending time, and the reason code for one of those four, and then chosen to click the 'select all' box . . . ."
In his responses at the Investigation, the Claimant offered the following explanation. Because he had been at the physical on June 25, he entered the time worked into the computer on either Monday or Tuesday. He asked a fellow worker what he got for overtime on June 25 and was told four hours. He put that number in and clicked. The co-worker who reported the matter to the Roadmaster confirmed the Claimant's description of his method of entry, "Cause he did it in just one shot." In short, the record indicates that the Claimant included all members of the work crew when he, with one click, entered the data into the computer. Such a
m ethod of data entry is consistent with the Claimant's assertion that he had made a n error.
The conflation by the Carrier of straight time and overtime hou rs shows up most significan tly in tbe R.oadmaster's testimony that the reporti ng worker: ''IAlllcged th at M r. House bad pu t in four hou rs overtime for the preceding Friday
that he felt he wasn 't entitled to. * * * [Tlhe employee also stated that, he called Mr. House on it, that be didn't think he was entitled to the time. M r. House just
shrugged his shoulders and continued on with what he was doing." Those assertions were not confirmed by tbe employee.
U nder (}uestioning by the Cond ucting Officer, Kevin W. Gustafson, the co worker wh o reported the entry explained his exchange with the Claimant when the entry ·was made:
"I guessIjust asked bim if be bad anything special that he had to put in for being gone, and he said, nope, and, okay, cause Iguess Ididn't know for sure. Cause I don't . . . ." (Emphasis added)
The Vice General Chairman asked the reporting employee:
"Do you remem ber talking to Mr. House about this issue? Did you say anything to him about bow come you put in eight straight and four overtime, or you just questioned wbether it should have been a, a vacation day or getting paid?"
The co-worker's response to this question made clear wbat his concern was: A: "[W]hen we were, when I was driving him back on Tbursday . .
. we were talking about it, and I told him, I think, I said, that's
when I thought, I didn't know for sure wbat tbe company policy was on it, so I thought he should have to take a vacation day to have the day off. But, and then when be was putting tbe time in, in tbe morning, I just asked him if he bad to put in anything special for having the whole day off." (Emphasis added)
Paobe I O
Docket No. MW-41759 13-3-N RAB-00003-ll 0390
According to tbe Road master's hea rsay account, the Claimant was directly challen ged on t he erroneous overtime entry and had shrugged the matter off. If this were an accu rate description of wha t had happened, it would have indicated that th e overti me entry was pu rposeful and would have justified the Carrier's concl usion that theft had taken place. However, the direct evidence is that the only question ra ised with the Claima nt at t he time of data entry was abou t pu tting in eigh t hou rs of straigh t time for the physical rather than taking vaca tion time. (The co-worker's assu mption that vacation tim e should have been used was not correct.)
In short, it is clear that the basis for the Claim ant's dismissal was the Road m aster's hea rsay version of what he had been told by Gustafson. However, accordi ng to what G ustafson stated at the Investigation, he questioned the Claimant abou t the straight time, not the overtime entry.
Beca use erroneous hea rsay does not amount to substantial evidence, the claim must be sustained to the extent provided in the parties' Agreement.
AWARD
Claim sustained.
ORDER
Tbis Board, after consideration of the dispute identified above, bereby 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 postma rk date the Award is transmitted to the parties.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division Dated at Chicago, Illinois, this 16th day of September 2013.
SERIAL NO. 419
NATIONAL RAILROAD ADJUSTMENT BOARD THIRD DIVISION
INTERPRETATION NO. 1 TO AWARD NO. 41708 DOCKET NO. MW-41759
NRAB-00003-110390 (Old) NRAB-00003-140096 (New)
NAME OF ORGANIZATION: (Brotherhood of Maintenance of Way Employes
( Division - IBT Rail Conference NAME OF CARRIER: (BNSF Railway Company
On September 16, 2013, the Board sustained the follow claim in the above case for the following reason:
“. . . [I]t is clear that the basis for the Claimant’s dismissal [for alleged falsification of an overtime claim] was the Roadmasters’ hearsay version of what he had been told by Gustafson. However, according to what Gufstasen stated at the Investigation, he questioned the Claimant about the straight time, not the overtime entry.
Because erroneous hearsay does not amount to substantial evidence, the claim must be sustained to the extent provided in the parties’ Agreement.”
This determination was based on the following two findings: Procedural:
The Investigation was untimely in that it was not held within the required time limit. As a result, Rule 40 (J) applied: “If an investigation is not held . . . within the time limits herein specified, or as extended by agreed-to postponement, the charges against the employe shall be considered as having been dismissed.”
Substantive:
The Claimant, an Assistant Section Foreman, took a Friday off from work in order to take the annual physical required for renewal of his Commercial Driver’s License (CDL). Both Parties agreed that the accepted practice was to consider all time involved in taking the physical as the equivalent of a full shift. After the intervening weekend, he entered into the computer a combined report on behalf of his work group for the day of his absence. A co-worker reported to the Roadmaster that he had questioned the Claimant’s act of reporting a full eight hours of work for the time involved in taking the CDL physical and that the Claimant had shrugged off this inquiry. The Roadmaster initiated the Claimant’s termination based on his incorrect understanding that the co-worker had reported to him that he had questioned the Claimant’s report of having worked four hours of overtime and that the Claimant had shrugged off that inquiry.
Thereafter, a dispute arose between the Parties with respect to implementation of the Award.1 By the time the Board heard the arguments of the Parties with respect to the Request for Interpretation, the following disputed matters remained:
Shall the Claimant’s backpay be offset by outside earnings?
The following was the Organization’s request for clarification as of March 25, 2014:
“The Organization requests that the Third Division clarify that the order “*** to make the Award effective on or before 30 days following the postmark date the Award is transmitted to the parties.” required that the Claimant be returned to work and be paid the monetary damages owed on or before October 16, 2013, and that the Carrier was liable for damages suffered by the Claimant as a result of its failure to do so. In addition, the Organization requests that the Third Division clarify the monetary remedy ordered in this case as a result of the Claimant having been unjustly dismissed. Finally, the Organization requests that the Board interpret its [A]ward so as to make clear that the Carrier must show the data and methodology used to calculate the monetary payments made to the Claimant pursuant to the [A]ward.
Shall the Claimant receive pay at the overtime rate for overtime work that was lost to him between his termination and his reinstatement?
Shall the Claimant be reimbursed for out-of-pocket insurance premiums?
