Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD

THIRD DIVISION

Award No. 42867 Docket No. SG-43471 18-3-NRAB-00003-160100

The Third Division consisted of the regular members and in addition Referee Patricia Bittel when award was rendered.

(Brotherhood of Railroad Signalmen PARTIES TO DISPUTE: (

(BNSF Railway Company

STATEMENT OF CLAIM:

"Claim on behalf of the General Committee of the Brotherhood of Railroad Signalmen on the BNSF Railw ay Company:

Claim on behalf of E. F. Wassam, for reinstatement to service w ith compensation for all time lost, including skill pay, w ith all rights and benefits unimpaired and w ith any mention of this matter removed from his personal record, account Carrier violated the current Signalmen's Agreement, particularly Rule 54, w hen it issued the harsh and excessive discipline of dismissal against the Claimant, w ithout providing him a fair and impartial Investigation and w ithout meeting its burden of proving the charges in connection w ith an Investigation held on June 13,

2014. Carrier's File No. 35 15 0004. General Chairman's File No. 14 034 BNSF 172 A. BRS File Case No. 15257 BNSF."

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.

The Claimant w as observed absent from work on June 2 and 3, 2014. Because he submitted eight hours straight time for each day, he w as found to have falsified payroll and to have been dishonest. As a result, he w as dismissed.

His dismissal w as grieved by the Organization as unjust. The parties to said dispute w ere given due notice of hearing thereon. Failing to resolve the matter, the Organization referred this dispute to the National Railroad Adjustment Board ("NRAB") for arbitration. This Division of the Adjustment Board has jurisdiction over the dispute involved herein.

BNSF determined in early 2014 that the overtime pay ments in the Claimant's work area w ere excessive w hen compared to similar locations on the Southw est Division. Starting in February 2014, discussions w ere held w ith employees on the Phoenix Subdivision, including the Claimant, informing these employees of BNSF's expectations. These expectations included instructions to contact a Supervisor before absenting themselves from assignment during regular hours. In June 2014, overtime was still excessive, so a "stealth audit" w as performed from June 2 through 4, 2014.

The Claimant w as observed absent from w ork for several hours during his shift on June 2 and 3, though he entered eight hours for each day. Company Officers observed the follow ing activities by Claimant on the days in question:

"June 2, 2014

0700 - 1100 - w orking 1100 - 1130 - lunch

1130 - 1200 - w orking

1200 - 1320 - at Walmart 1320 - 1458 - w orking

1458 - 1530 - his residence Working hours: 6 hours 8 minutes Non working hours: 1 hour 52 minutes

June 3, 2014

0700 - 0716 - late to work 0716 - 0859 - w orking

0859 - 1100 - his residence

1100 - 1130 - lunch at his residence

1130 - 1530 - plumbing store and his residence Working hours: 1 hour 43 minutes Non working hours: 6 hours 17 minutes"

The Carrier flatly denies the Organization's contention that the entire Signal Department in the Phoenix area operated under an unofficial "give and take" practice that allowed them to take time off as long as they worked the time off later. It notes there is no evidence on record to corroborate this assertion. Supervisor Sheets denied that there was any policy that allowed employees to charge time, then work without pay later. He explained the only empowerment they have is to relocate if needed, in which case they are to advise him accordingly. The Carrier concludes the evidence plainly shows the Claimant charging the Carrier for hours spent at home or shopping, and maintains this constitutes blatant dishonesty.

The Organization protests that the hearing officer and the writer of the letter of dismissal are the same person. In its view, this constitutes fatal procedural error. The Organization notes that the Carrier has dismissed a 35-year employee and considers this a powerful mitigating circumstance. It then makes two points: Give/Take and Empowerment. It describes Give/Take as a policy of allowing employees to add and subtract hours to payroll so long as they made up for it later. Empowerment refers to the Carrier's delegation of authority to the employee to make decisions without supervisory permission when necessary to preserve health and safety of employees and equipment. The Organization stresses that these policies were the reason why the accused made the decisions he did on the days in question.

According to the Organization, the empowerment procedure was used as needed when an employee felt the need to utilize time away from the extreme hazards of the job. It alleges each employee and his/her supervisor knew empowerment existed to avoid injury or damage to employees. It maintains the hazards of concern included the extreme heat of Phoenix and the fatigue of working excessive odd hours. The Claimant asserts he enjoyed this arrangement with his previous signal supervisors, but until the investigation, he had not had an opportunity to discuss it w ith his signal supervisor, D.B. Sheets.

The Claimant contends that on June 3, 2014 he received a call from home that he w as needed for an emergency. He immediately responded, not know ing how long it w ould take, but believing that once he had a chance, he w ould talk to Supervisor Sheets. He denied having any opportunity to do so before his removal from service.

The Board finds no procedural error in this case. The Hearing Officer is the appropriate person to evaluate credibility and render a decision accordingly.

The Board is not at all persuaded by the Organization's contentions regarding practices for keeping payroll hours. Allow ing employees to falsely record time w orked would fly in the face of legal and contractual requirements regarding employee pay, and for that reason alone, w ould require strong and convincing proof. Further, an employer cannot function w ithout know ing w hat human resources are available to perform needed w ork. To have employees depart w ithout a peep w ould leave supervision clueless as to w ho w as at w ork and w ho w as not. Even if such practice could be deemed to exist, it w ould have to be tightly tied to a requirement to advise supervision of the need to depart. Yet there is no evidence whatsoever that the Claimant let any member of supervision know he w as leaving work.

Not surprisingly, there is no substantiation for this alleged practice. There is not a scintilla of evidence that employees w ere allow ed to play w ith their hours in this fashion. Clearly, w hen the Claimant w rote dow n that he had w orked eight hours, this became the payroll record, an official employer document relied upon for everything from meeting legal requirements to assessing fiscal liability. Under the proposed "empow erment" practice, a second falsification w ould be required w hen the Claimant theoretically w orked make-up hours w ithout recording them as hours worked. Supervision simply cannot countenance inaccurate or falsified record keeping, particularly when it comes to payroll, and this Board is not persuaded than any manager or supervisor did.

We are left w ith the mitigating circumstance of long and faithful service. Unfortunately, there are situations w here the employer-employee relationship has become so damaged that no mitigating circumstance can glue it back together. Where the employer's trust in an employee has been lost, such a situation arises. The Claimant w orked w ithin a system that allowed him to record his ow n hours, and as such, he w as trusted to be honest and straightforw ard fulfilling this task. Instead, the record show s the Claimant took off w ork for long periods of time and neglected to even mention to his supervisor that he w as gone. At the same time he recorded in official records that he had indeed been at work. The Carrier has met its burden of proof in this case.

AWARD

Claim denied.

ORDER

This Board, after consideration of the dispute identified above, hereby orders that an Award favorable to the Claimant(s) not be made.

NATIONAL RAILROAD ADJUSTMENT BOARD By Order of Third Division

Dated at Chicago, Illinois, this 10th day of January 2018.