Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 43895 Docket No. SG-45205 20-3-NRAB-00003-180642
The Third Division consisted of the regular members and in addition Referee Dennis J. Campagna when award was rendered.
(Brotherhood of Railroad Signalmen
PARTIES TO DISPUTE: (
(National Railroad Passenger Corporation (AMTRAK)
STATEMENT OF CLAIM:
“Claim of the General Committee of the Brotherhood of Railroad Signalmen on the National Railroad Passenger Corp. (Amtrak):
Claim on behalf of R. Postell, for reinstatement to his former position with all seniority and benefits unimpaired, compensation for all time lost, including overtime, and any mention of this matter removed from his personal record, account Carrier violated the current Signalmen's Agreement, particularly Rule 57, when it issued the harsh and excessive, discipline to the Claimant without providing him with a fair and impartial investigation and without meeting its burden of proving the charges in connection with an Investigation held on May 25, 2017. Carrier's File No. BRS-SD-1216D. General Chairman's File No. AEGC #2017-102-4. BRS File Case No. 15855-NRPC(S). NMB Code No. 173.”
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 relevant facts giving rise to this dispute are as follows:
By letter dated March 28, 2017, the Carrier issued a Notice of Investigation for April 7, 2017 to review the following Charge and Specification:
Charges:
1. Violation of Amtrak's "Standards of Excellence" pertaining to the sections entitled Trust and Honesty, Professional and Personal Conduct and Attending to Duties, which read in pertinent parts:
TrustandHonesty: "Becausehonestyissoimportanttotrustandourability to work together as a team, Amtrak has no tolerance for employees who are dishonest."
Professional and Personal Conduct: Teamwork- . . . Part of teamwork is properly performing your duties. Another part is following instructions. Therefore, you must comply with all company and departmental policies, procedures and rules as well as all instructions, directions, and orders from supervisors and managers."
Attending to Duties: ". . . As an Amtrak employee and, therefore, the company's most important resource, you have an obligation to perform your duties properly and in accordance with the standards set for your particular job. That requires that you remain alert to your duties at all times. Any activity or behavior that distracts or prevents you or others from attending to duties is unacceptable."
2. Violation (TED) Time Entrance Reporting Policy.
Specification(s):
After concluding its investigation, the Amtrak Engineering Department was advised on March 9, 2017 by Amtrak's Office of Inspector General that Amtrak Signal Maintainer Robert Postell, had engaged in the following:
1. On July 19, 2016 while being interviewed by Special Agent(s), conducted himself dishonestly when he provided false, incomplete and or misleading information to a Federal Agent during the course of the investigation regarding his leaving of work early before the end of his shift.
2. From July 13, 2013 to September 7, 2015 Mr. Postell was observed on Video Surveillance arriving late and or departing his work shift early on 19 occasions. Mr. Postell was paid 46.75 overtime hours for a total of $2,003 for time he did not work during this time.
3. Between August 2014 and June, 2016, Mr. Postell failed to utilize the Time Entry Device System (TED) for weekend overtime shifts on 85 occasions as required by Amtrak's Engineering Department.
The formal investigation took place on May 25, 2017 at which time the Claimant attended with his BRS representative. The Claimant was offered full and fair the opportunity to question witnesses, examine evidence, and submit evidence on their own behalf.
By Decision dated June 5, 2017, Hearing Officer Francis Krische found the Claimant partially guilty, concluding there was substantial evidence presented at trial that he was dishonest and was paid for time that he did not work and did not swipe in and out as required by the Carrier's TED policy. Based on the findings and conclusions of the Hearing Officer, the Claimant was terminated on the same date. A timely appeal by the Organization followed. Unresolved, the Organization filed a notice of intent to file a submission with the NRAB Third Division dated July 2, 2018.
The Board, upon the whole record and on the evidence, finds that the parties herein are Carrier and Employees within the meaning of the Railway Labor Act, as amended;thatthisBoardisduly constitutedby agreementoftheparties;thattheBoard has jurisdiction over the parties, claim and subject matter herein, and that the parties were given due notice of the hearing which was held on November 19, 2019.
The Carrier and Organization are parties to a Collective Bargaining Agreement which has been in effect at all times relevant to this dispute, covering the Carrier’s employees in the Claimant’s craft. The instant appeal has been handled in the usual manner up to and including the highest officer designated by the Carrier to handle such disputes, and has been discussed with and denied by that officer. Therefore, the dispute is properly referable to this Board in accordance with Section 3, First (i) and (h) of the Railway Labor Act.
This is a claim for rescinding R. Postell’s (Claimant’s) termination together with a make-whole remedy.The circumstances giving rise to the Claimant’s termination and the resulting claim are detailed below.
Asaresultofananonymoustipreceivedby theOIG’soffice,aninvestigationwas conducted which focused on C&S Gang Q062 headquartered near Newark, NJ and supervised by Donald Harper and Richard Vogel, both of whom pled guilty to criminal charges of payroll fraud The OIG report detailed its findings that several members of Gang Q062, includingthe Claimant, had violated Amtrak policy and committed payroll fraud by claiming and receiving pay for unworked regular and overtime hours and failing to follow the Carrier's TED policy. In addition, video surveillance documented the Claimant's arrivals and departures during overtime shifts between July 12, 2013 andSeptember7,2015whereintheClaimantwasobservedarrivinglateorleavingearly on 19 days during that time period. When the surveillance information was compared to hours that the Claimant submitted and for which he was paid, it was determined that the Claimant was overpaid $2003 for 46.75 overtime hours notworked. In addition, the record reflects and there is no dispute that an active TED system was available for the Claimant's use on 10 of the surveillance days but this point notwithstanding, the Claimant failed to use the system, choosing instead to dishonestly reporting that the system was down on three of those dates.
The record also reflects that upon review of the Claimant's cell phone records duringweekendovertimeshiftsbetweenJanuary andJuneof2016,itwasapparentthat on multiple occasions, the Claimant was outside of his railroad work territory prior to theendofashiftthathewaspaidfor. Asanexample,itwasdeterminedthatonJanuary 2, 2016, the Claimant's schedule listed his shift as 7 AM to 7 PM and cell phone records showed that at 3:53 PM he received a phone call while near his Matawan, NJ residence. Carrier records show that the Claimant was paid the sum of $140 for 3 overtime hours he did not work on that date.
While the Claimant offered excuses for his behavior, the Hearing Officer was quick to determine that the Claimant’s testimony was simply not credible where the Hearing Officer noted as follows:
“I found your testimony and demeanor while testifying especially on cross examination to be less than credible. Moreover, I note that the daily calendar seems somewhat contrived in that the times indicated in these daily calendars which you allege you completed at the time of the event have time which uniquely and specifically correspond to the carrier's video surveillance spreadsheet . . . As a result based on what appeared to becontrivedpaperworkaswellasyourowndemeanor,Ifoundyourentire testimony to be less than credible.”
As part of the Claimant’s defense, the Organization suggested that at times, the Claimant reported somewhere other than his assigned headquarters. While interesting, the Organization failed to provide any support for its suggested defense.
In the end, the Hearing Officer carefully weighed and reviewed the evidence and concluded that while the Claimant was not proven guilty for the Charge of dishonesty to the Claimant was guilty of putting in for and receiving pay for time not worked as alleged in the Charge. While the Organization has taken issue with the Hearing Officer’s decision and conclusion, it is clear to this Board that the Hearing Officer observed the testimony and received the evidence first hand. Finding no basis upon which to discount the Hearing Officer’s weighing of the conflicting evidence and inferences, this Board is bound to accept her conclusions, particularly as to the determinations made regarding witness credibility. In this regard, the Hearing Officer determined that the Claimant's testimony seemed contrived and she did not find him convincing. Given the record as a whole, this Board finds and concludes that the Hearing Officer's credibility determinations were sound and should not be disturbed.
Having concluded that there is substantial evidence in the record to support the allegations, there remains a question as to the appropriate discipline. In reviewing the Claimant’s past work history, the Board notes that in addition to the proven offenses in this case, the Claimant’s history file contains a Last Chance Agreement which states that any furtherproven violationoftheCarrier’s policy and/or procedureswouldresult in dismissal. In this regard, the Claimant signed this Last Chance Agreement which provided, in relevant part:
The Claimant understands that if at any time in the future he violates Amtrak’s policiesandprocedures,includingconductsimilartothiscase,hewillbedismissedfrom Amtrak service.
The foregoing agreement represented the result of serious discussions between the Carrier and the Organization, an agreement that gave the Claimant one last chance to prove himself. Ignoring this language would place a damper on future discussions between these Parties and in the end would not be beneficial to either Party. Accordingly, given the clear language noted above, the Board has no choice but to uphold the Claimant’s termination.
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 28th day of January 2020.