Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 41798 Docket No. MW-42135
13-3-NRAB-00003-130093
The Third Division consisted of the regular members and in addition Referee Margo R. Newman when award was rendered.
PARTIES TO DISPUTE: (
“Claim of the System Committee of the Brotherhood that:
The discipline (dismissal) imposed by letter dated February 8, 2012 upon Mr. G. Mazzantini for alleged violation of Safety Rules PGR- C (para. 2 & 3), PGR-L (para. 1) and PGR-N (para. 4) in connection with allegations that he was at a scrap company for non- authorized work on numerous occasions was arbitrary, capricious, without just cause and in violation of the Agreement (Carrier’s File MW-12-05).
As a consequence of the violation referred to in Part (1) above, Mr.
G. Mazzantini shall be returned to work, have his record cleared of the charges and be compensated for all lost wages and benefits as a result of the Carrier’s improper discipline.”
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.
By letter dated November 22, 2011 the Claimant was directed to report for a Hearing on December 7, wherein it was alleged that on November 9, after questioning, it was determined that he was at a scrap company for non-authorized work while on duty on numerous occasions, in violation of specific sections of Safety Rules PGR-C, L
& N, which provide, in relevant part, that employees must not be dishonest, enter time on time slips for time not actually worked, and act in willful disregard of Company interests. After two unilateral postponements, a Hearing was conducted on January 26, 2012 and, by letter dated February 8, 2012, the Claimant was found guilty of all charges and dismissed from employment.
The following provisions of Article 26 - Discipline, are relevant to the arguments raised in this case:
“26.1 No employee will be disciplined without a fair hearing. The notice of hearing will be mailed to the employee within 14 days of the Carrier’s first knowledge of the act or occurrence . . . . The hearing will be scheduled to take place on a regularly scheduled work day within 30 days of the Carrier’s first knowledge of the act or occurrence
. . . .
An Employee may not be suspended pending a hearing except when the act or occurrence to be investigated is of a serious nature such as Rule G, insubordination, extreme negligence, dishonesty, or when continuing an employee in service may constitute a threat to Carrier personnel, carrier property, or property entrusted to the custody of the Carrier. Suspension pending a hearing will not be considered as prejudicial to the employee and will be used sparingly by the Carrier.
The employee will have the opportunity to request that the Carrier provide necessary witnesses not listed on the notice of hearing and will have the opportunity to secure the presence of witnesses in his own behalf . . . .
26.7 If the Carrier’s discipline decision is modified or overturned at any stage of the handling resulting in a payment to the employee, such payment may be offset by any earnings received by the employee during the relevant time period which would not have otherwise been
earned but for the discipline. The Carrier will work with the appropriate government agencies to assure that no Railroad Retirement benefits are adversely affected by the operation of the above provision.”
At the Hearing, Carrier Police Officer Murphy testified that during the course of his overall investigation into the theft of rail commencing in early September, he was given the names of various employees, including the Claimant. Murphy stated that although the Claimant was not found to have been involved with the theft of rail, during the investigation he became aware that the Claimant had been at Apkins Scrap Yard when he was supposedly working on a number of occasions, and obtained detailed Vendor Tickets to this effect on November 1, 2011. Executive Director of Safety and Security Nagy testified that he obtained the Claimant’s time records and compared them with the Vendor Tickets establishing the Claimant’s involvement with stealing time from the Company a couple of days before taking him out of service on November 9, 2011. The Claimant, a 33-year employee serving as a Surfacing Foreman in the Engineering Department for 20 years, stated that Nagy questioned him that date about who was involved with the rail theft and gave him “the chance to come clean” on that issue, and after he replied that he had no knowledge of that information, he was told by Nagy that he was being removed from service because he may have visited Apkins Scrap Yard to scrap items for personal gain while on Company time, which he also denied. Over the Organization’s objections, the Hearing Officer admitted signed, sworn statements from two employees of Apkins Scrap Yard concerning their procedures and records, without requiring the attendance of any representative of Apkins Scrap Yard at the Hearing for the Organization to be able to question, especially in light of the Claimant’s written statement and that of his son, about his son’s use of the Claimant’s account to scrap items at Apkins Scrap Yard during the relevant time.
Without going into further detail about the nature and extent of the evidence relied upon by the Carrier in determining the Claimant’s guilt of the charges, the Board will address certain of the procedural Agreement due process arguments raised by the Organization both at the Hearing and during the on-property claim handling process. The Organization argued that the Claimant was improperly withheld from service on November 9, 2011 based on the contention the allegations against him do not rise to the level of seriousness or a threat to the Carrier or its property required under Article 26.2, citing Third Division Awards 21834, 27009, 28767, and 29588. It also asserts that the Carrier failed to issue a Hearing Notice within 14 days of when it had first knowledge of the act involved, and failed to schedule and hold a Hearing within 30
days of such date, in violation of Article 26.1, and that failure to comply with both clear contractual time limits requires overturning the resulting discipline without reaching the merits of the claim, relying on Third Division Awards 16262, 19275, and 28927. Finally, the Organization contends that the Claimant was denied his Agreement due process right to a fair and impartial Hearing by the Carrier’s failure to provide necessary witnesses for questioning at the Hearing, citing Third Division Award 13240.
The Carrier argues that the Claimant received a fair and impartial Investigation, and that it first learned of the actions leading to the charges after speaking with the Claimant on November 9, 2011, making both the November 22 Notice of Hearing and the original Hearing date of December 7, 2011 timely under the parameters of Article 26.1. It also contends that there was substantial evidence in the record to support the charges. It asserts that this conduct met the seriousness requirements for removal from service under Article 26.2 because it involved dishonesty, and that the serious nature of the offense warranted dismissal, as noted by the Rules cited, making the penalty neither arbitrary nor unreasonable.
After careful review of the record, the Board is of the opinion that we need not reach the merits of the case, because the record supports the conclusion that the Carrier’s official designated to conduct an investigation of individuals including the Claimant learned, and obtained documentary evidence, on November 1, 2011 that the Claimant was present at Apkins Scrap Yard on dates and at times when he was normally working. The Notice of Hearing charging the Claimant with theft of Company time based upon this information was not issued until November 22, 2011, outside the required 14-day period contained in Article 26.1 for the issuance of Hearing notices from “the Carrier’s first notice of the act or occurrence.” Additionally, the initial December 7 Hearing date falls outside the required 30-day time limit for scheduling a Hearing set forth in the same provision. Even accepting Nagy’s testimony that he first knew of the Claimant’s actions when he put together the Apkins Scrap Yard information with time record documentation a couple of days before his conversation with the Claimant removing him from service on November 9 or earlier - the November 22 Notice of Hearing is still outside the permissible time limits of the Agreement, and the December 7 Hearing date would not be within the requisite 30-day period.
We adopt the following rationale set forth in Third Division Award 28927 as equally applicable in this case.
“The time limit as set forth is clear, unambiguous, and mandatory. It has not been met by the Carrier in this case. We will not, therefore, examine the merits of the discipline inasmuch as the Investigation was not timely held. This Board has ruled in many cases, too numerous to require citation here, that time limits such as those found in Rule No. 25 are meant to be complied with. When they are not complied with, we will sustain the Claim of the Organization.”
Having so found, the Board need not address the other procedural Agreement due process arguments raised by the Organization. The claim is sustained, and the Claimant shall be returned to work, have his record cleared of the charges, and be compensated for all lost wages and benefits commencing on November 9, 2011 when he was removed from service. In accordance with Article 26.7, the Claimant’s interim earnings are properly deducted from the compensation owing herein.
Claim sustained.
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 17th day of December 2013.
**Corrected** SERIAL NO. 415
NAME OF ORGANIZATION: (Brotherhood of Maintenance of Way Employes
LABOR MEMBER'S CONCURRING AND DISSENTING OPINION
TO INTERPRETATION NO. 1
TO
AWARD 41798, DOCKET MW-42135
(Referee Margo R. Newman)
I write in partial concurrence and partial dissent of the interpretation award. I concur with the Majority's findings and it was on solid ground when it held:
"The Board is convinced that the make whole remedy originally ordered contemplated the normal inclusions, such as lost overtime, (see Third Division Award 37653; Interpretation No. 1 to Third Division Award 41041), reimbursement for out-of-pocket insurance premiums/excess payouts, (see Interpretation No. 1 to
Third Division Award 41041), and other benefits that the Claimant would have accrued had he not been wrongfully dismissed. ***" (Page 3 of the Interpretation
to Third Division Award 41798)
Unfortunately the Majority then eschewed this foundation when it fashioned an interpretation made up of incorrect information provided to the Board for the first time in the Carrier Board Member's oral argument presented at the July 9, 2015 interpretation hearing. Thus, a dissent is also required.
The first issue this Board member must emphasize is the impropriety of the Carrier's Labor Relations Officer (who is assigned as a Carrier Member of the Third Division for the cases involving his respective railroad) alleging facts and bringing forth specious argumentation which was never first brought up during the local on-property handling. In this instance, the Carrier Labor Relations Officer/ Third Division Carrier Member provided one-sided commentary, seasoned with mistruths and inaccuracies, to which he implied to be irrefutable as the only person in the hearing that was involved during the on-property handling. In connection with these Carrier contentions, the Organization's permanent Third Division Member (who is limited to the record before the Board) could only object to the Carrier contentions as not being raised at a time when the Organization's local members could rightfully respond. Ifcarriers are to use an ever changing game of musical chairs to fill its NRAB positions with local labor relations officials directly connected to these cases, the Board must remember that this process is appellate in nature and is limited to the on-property record.
While this labor member vehemently objected to the Carrier member's attempt to taint the record, it is clear from the written decision that the Majority's interpretation was formulated using Carrier contentions not raised prior to the July 9, 2015 oral hearing. Moreover, it was patently misplaced for the Majority to chastise the Organization for not providing an alternative method of calculating lost overtime wages, because the Organization and Claimant did in fact provide a
methodology to determine lost overtime wages while the issue was yet being handled on the property at the local level. Moreover, the Organization provided award precedent in support of its position, but the Majority did not even address the existence -much less that cogency - of such precedent. While the Organization fully flushed out and presented its position with regard to overtime payments due the Claimant during the on-property handling of the case, the only Carrier position presented while the case was being handled on the property asserted that the Claimant was not entitled to any overtime wages. The Carrier interpretation submission is thus completely barren of any reference to a methodology for calculating lost overtime.
It is no less than shocking that the Majority held that: "... neither the Organization nor the
Claimant offered a specific manner for calculating the appropriate overtime hours attributable to the claim period, or an alleged sum owed. ***" (Page 4 of the Interpretation to Third Division
Award 41798). This is plainly and unquestionably untrue. The Organization and the Claimant did unequivocally provide a manner via which to calculate the amount of lost overtime wages. On March 25, 2014, the Claimant sent an e-mail with an attached statement detailing the amount that the Carrier owed him. This letter from the Claimant revealed both the manner used to calculate the overtime hours accrued over the course of the claim period and the total monetary sum owed. This document was even furnished to the Majority by the Carrier Member himself and it is identified as Exhibit "J" in the Carrier's submission. The Claimant's March 25, 2014 e-mail (Carrier's Exhibit "J-1") reads, in pertinent part:
"Mr. Lomato,
Attached is a statement of my earnings, by year, from Nov. 9th, 2011 through Jan. 14th, 2014. I have subtracted my earninis from those of a junior man to me, who held my job for that time period. Ihave also listed my expenses for health and dental benefits Ihad as a result of my dismissal. The mileage listed is extra miles traveled which Iwould not have had, if Iwas not dismissed from my job. Iwould also like to ensure that my form BA-6 reflects the wages as listed for 2012 and 2013.
Thank you in advance for your timely attention to this matter. Please respond via email or written correspondence by April 8th.
Gary Mazzantini"
(Bold and underscore added)
The Claimant's calculations were attached to a document in that e-mail outlined in a chart which can be found as Carrier's Exhibit "J-2" which, in pertinent part, reads:
"Paul, following is a yearly total of lost benefits and wages, beginning Nov. 9, 2011 through Jan. 13, 2014. I have all copies of w-2 forms, health and dental insurance premiums, dental bills, airline ticket and union payments.
2011 Nov. 9-Dec. 31
lost wages 7863
earnings
(RR unempl)
1188
6675.00 Earnings loss for 2011
2012
lost wages
ins. premiums
5 wks. vacation personal days
95,000
3,862
5,252
1,050
(nearest junior man to me) (Blue Cross Blue Shield family med ica l and individual dental Starting April 1 through Dec 31,
2012)
mileage
3,795 (6,900 miles x 55/mile)
w-2 earnings
108,959
55,024
53,935.00 earnings loss for 2012
2013
lost wages
ins premiums mileage dental bills
107,419 (nearest junior man to me) 5,438 (same plan as above, full year) 7,682 (13,968 x 55/mile)
292 (Dr. Martin Bush Adams, MA, for sons)
w-2 earnings
120,831
48,233
72,598 earnings loss for 2013
2014
lost wages 4,618
ins. premiums 400 (Jan. 1 to Feb 1)
5018 earnings loss for 2014
"I believe this brings total to 138, 228
15,985 (amount paid me thus far by PanAm) 122,241 (amount still owed to me)
Thank you, Gary Mazzantini"
In the face of this perfectly unambiguous and unrebutted record evidence concerning how the overtime remedy should be calculated and what it amounted to, the Majority incredibly, somehow found its way to the following conclusions:
"*** As noted by the Carrier, the nature of the Claimant's Foreman position and frequency of gang changes makes it nearly impossible to assign an identity to a replacement employee. We find that, in the absence of an ascertainable reasonable alternative, the Carrier's suggested methodology of arriving at the lost overtime hours by averaging the overtime hours worked by the person above and below the Claimant on the Foreman seniority roster
is a reasonable method of calculating the Claimant's lost overtime. ***"
(Interpretation to Award 41798, Page 4)
The record shows that the Carrier never once suggested any methodology for calculating the Claimant's lost overtime wages, prior to the oral hearing on July 9, 2015. In fact, the Carrier responded to the Claimant's March 25, 2014 e-mail, via an e-mail dated April 10, 2015 (Carrier's Exhibit "K-1") which, in pertinent part, reads:
"Mr. Mazzantini:
This is in response to you March 25, 2014 email.
* * *
*** Furthermore, the Carrier is not required to guess or otherwise pick a random method for computing potential overtime, if any, that you may or may not have worked during this time frame. You have been made whole for the wages that you definitely would have been entitled to earn, m accordance with the Award.
"* * *
Subsequent to receiving payment, but prior to your March 25th email, you called to inform the Carrier that you expected more payment, but did not actually discuss the matter to any extent or provide any detail to support your position. Please be advised that your March 25, 2014 email does not support your claim for any additional payment either.
Having once again reviewed Award 41798, as well as the documentation previously provided by you and the Carrier's payroll records, please allow this to serve as the Carrier's position that you have been paid in full."
The Carrier did not provide a method of calculation in connection with the overtime compensation due the Claimant. To the contrary, the Carrier maintained throughout this case, including in its interpretation submission, that the Claimant was not entitled to receive any overtime payment whatsoever. It was not until its oral presentation before the Board on July 9, 2015 that the Carrier ever deigned to suggest a methodology for ascertaining the overtime that would be due Claimant. The Majority's out-of-the-blue findings were completely unknown and ungrounded in any written documentation presented to the Board, as the findings cannot be found in the Carrier's submission or culled from its on-property correspondence. The Majority's findings are not based on valid evidence properly provided in the record, instead, the Carrier member's unsubstantiated testimony about the case at the Board, which testimony never saw the light of day prior thereto.
For all of the above-stated reasons, this interpretation is palpably erroneous and I vigorously dissent.
Respectfully submitted,
Z-- ll
Zachary Voegel
Labor Member