Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD

THIRD DIVISION

Award No. 43682 Docket No. MW-44744 19-3-NRAB-00003-170730

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

(Brotherhood of Maintenance of Way Employes Division (IBT Rail Conference

PARTIES TO DISPUTE: (

(BNSF Railway Company

STATEMENT OF CLAIM:

"(1) The discipline (dismissal) imposed upon Mr. C. McCluskey by

letter dated May 20, 2016 for alleged violation of MWOR 1.6 Conduct in connection with his alleged ' ... misconduct and theft of time when you falsified payroll on April 12, 13, and 14, 2016 while working as a "'B&B foreman on the Mitchell and Aberdeen subdivisions.' was on the basis of unproven charges, arbitrary, without just and sufficient cause, excessive and in violation of the Agreement (System File T-D-4969-M/11-16-0332 BNR).

(2) As a consequence of the violation referred to in Part (1) above, Claimant C. McCluskey shall be reinstated to servicewith seniority and other rights and benefits unimpaired, his record cleared of the chargesleveledagainsthimand:'Theclaimantshallbemadewhole for all financial losses as a result of the violation, including compensation for:

1) Straight time for eachregular work day lost and holiday pay for each holiday lost, to be paid at the rate of the position assigned to the claimant at the time of removal from service (this amount is not reduced by earnings from alternate employment obtained by the claimant while wrongfully removed from service);

2) Any general lump-sum payment or retroactive general wage increase provided in any applicable Agreement that became effective while the claimant was out of service;

3) Overtime pay for lost overtime opportunities based on overtime for any position claimant could have held during the time claimant was removed from service, or on overtime paid to any junior employee for work the claimant could have bid on and performed had the claimant not been removed from service;

4) Health, dental and vision care insurance premiums, deductibles and co-pays than he would not have paid had he not been unjustly removed from service."

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 Carrier alleges Claimant engaged in misconduct and theft of time when he falsified his payroll. It notes that he is a foreman who puts the time of his gang into the system, and is therefore in a position of trust. It asserts that on three occasions in April he reported time not worked.

On April 13, the gang went to a restaurant at 5:30, then to their hotel at 6:30. Even so, Claimant texted his supervisor at 7:40 that hewasdone for the day. Asa result, his records showed the gang working duringthe 5:30 to 7:30 timeframe when they were actually at a restaurant. The next day, April 14, two hours overtime was reported for inspecting culverts. In addition, Claimant entered 2.7 hours overtime for himself. When questioned at the investigation, he admitted he did not do that work. The Carrier concludes dismissal was proper.

The Organization contends the dismissal cannot stand because of multiple, blatant actions, any one of which constitutes utter denial of due process. It first notes that Claimant did not receive his Notice of Investigation five days prior to hearing. It argues that although the Carrier asserts it put the Notice in the mail on time, it contends this is not sufficient; actual receipt is required. Next it argues the Hearing Officer and the Carrier's main witness met for fully eight hours before the hearing, wilting any appearance or possibility of a fair hearing. Further, the Organization attempted to introduce evidence in the form of cut letters to support its defense that Claimant was the victim of disparate treatment. The Hearing Officer would not admit the Organization'sevidence in whattheOrganization seesas yet another displayof biasand unfairness during the investigation.

The Carrier defends that there is no evidence of coaching, and characterizes the Organization's objections as speculation. In its view, when Claimant admitted his guilt, the Carrier had the proof it needed on record.

In the view of this Board, the procedural lapses prior to and during Investigation are simply too grave to ignore. To have the ostensibly "neutral" hearing officer confer with the Carrier's prime witness for fully eight hours shortly before hearing shatters any reasonable expectation of neutrality. Further, to deny the Organization the opportunity to present its arguments and evidence on a defense of disparate treatment isagrievousdenialoffairhearing.Giventhesepronouncedproceduralflaws,theBoard has no alternative but to grant the claim in full. As such, there is no need to address the timeliness issues in the processing of the claim.

AWARD

Claim sustained.

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 18th day of June 2019.