THIRD DIVISION
Award No. 44671 Docket No. MW-46411
22-3-NRAB-00003-210080
The Third Division consisted of the regular members and in addition Referee Michael Capone when award was rendered.
(Brotherhood of Maintenance of Way Employes Division - (IBT Rail Conference
(BNSF Railway Company (Former Burlington Northern (Railroad Company)
“Claim of the System Committee of the Brotherhood that:
The discipline (dismissal) imposed upon Mr. J. Williams, by letter dated September 4, 2019, for violation of MWOR 1.6 Conduct was on the basis of unproven charges, arbitrary, excessive and in violation of the Agreement (System File C-19- D070-11/10-19-0336 BNR).
As a consequence of the violation referred to in Part (1) above, Claimant J. Williams shall be ‘... reinstated to service with all seniority rights restored and all entitlement to, and credit for, benefits restored, including vacation and health insurance benefits. The Claimant shall be made whole for all financial losses as a result of the violation, including compensation for: 1) straight time for each regular work day lost and holiday pay for each holiday lost, to be paid at the rate of the position assigned to the claimant [sic] at the time of removal from service (this amount is not reduced by earnings from alternate employment obtained by the claimant [sic] 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 [sic] could have held during the time claimant was removed from service, or on overtime paid to any junior employee for work the claimant [sic] could have bid on and performed had the Claimant not been removed form (sic) service; 4) health, dental and vision care insurance premiums, deductibles and co-pays that he would not have paid had he not been unjustly removed from service. All notations of this dismissal should be removed from all carrier records, due to the Carrier’s arbitrary, capricious, and excessive discipline leading to the Claimant being improperly dismissed.”
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, Jeffrey Williams, is a Machine Operator employed by the Carrier since March 19, 2012. On November 19, 2018, the Claimant was notified of a hearing and investigation to be held on November 28, 2018, alleging misconduct by searching a subordinate’s lunch pail to determine what medications it contained and divulging confidential medical information related to the employee. After a postponement and recess the hearing was held on August 7, 2019. On September 4, 2019, the Claimant was notified that he was dismissed from service after the Carrier found him guilty of the charges. The record indicates that the Carrier denied subsequent appeals by the Organization and rendered its final decision on January 30, 2020. The Organization rejected the Carrier’s decision and moved to have the matter adjudicated before this Board.
In discipline cases, as the one before the Board here, the burden of proof is upon the Carrier to prove its case with substantial evidence and, where it does establish such evidence, that the penalty imposed is not an abuse of discretion. Upon review of all evidence adduced during the on-property investigation, the Board finds that the Carrier violated the procedural requirements of Rule 40A and has not met its burden of proof that the Claimant divulged confidential medical information and searched Mr. Wayne Shepard’s lunch box for medications without permission.
The record defines two specific allegations of misconduct. The first pertains to the Claimant’s activities, while working as a foreman, where he divulged Mr. Shepard’s, medical information to other employees. The second relates to his purported search of Mr. Shepard’s lunchbox to ascertain what medications he possessed.
The Organization raised numerous procedural objections during the Investigation. We sustain its claim that the Carrier violated Rule 40, Investigations and Appeals, paragraph A, when it failed to hold the hearing within 15 days of first knowledge of the information “by an officer of the Company”. Rule 40A of the Controlling Agreement reads as follows:
A. An employee in service sixty (60) days or more will not be disciplined or dismissed until after a fair and impartial investigation has been held. Such investigation shall be set promptly to be held not later than fifteen (15) days from the date of the occurrence, except that personal conduct cases will be subject to the fifteen (15) day limit from the date information is obtained by an officer of the Company (excluding employees of the Security Department) and except as provided in Section B of this rule.
Roadmaster Donald Jones testified that he heard the Claimant make statements about Mr. Shepard’s medical condition and medication during a March 2018 safety meeting in the presence of other employees. In his testimony and in his statement to Human Resources on November 13, 2018, Mr. Jones acknowledged that he spoke to the Claimant about his misconduct and discussed it with Mr. Shepard as well.
Based on the foregoing, we find that Roadmaster Jones, as the Claimant’s supervising officer, had the authority to initiate a disciplinary investigation after he witnessed the Claimant’s misconduct in March and therefore, the Notice of Investigation, dated November 19, 2018, scheduling a hearing for November 28, 2018, violates Rule 40A. We reject the Carrier’s assertion that the mutual agreement to postpone the hearing renders the Organization’s objection invalid. The Organization raised its objection during the first hearing of January 8, 2019 when it heard Mr. Jones’ testimony. The Board finds no basis to conclude that the Organization waived its ability to raise a procedural objection before it became aware that an error was committed.
We also find that the Carrier’s reliance on arbitral precedent finding that technical procedural violations are not enforced without evidence that it failed to provide a fair and impartial investigation is not applicable to the facts here. The record indicates that some witnesses’ testimony conflicted with prior statements made to Human Resources when it initiated its fact-finding into the allegations in October 2018, seven months after the alleged infraction. The Carrier’s dependence on unreliable testimony and incomplete written statements constitutes more than a technical violation. The ability to document reliable evidence during an Investigation, before memories fade, evidence is lost, or before witnesses become unavailable, is an essential component of a fair and impartial hearing and is fundamental to ensuring due process.
The Board finds the remaining claims of procedural error unsupported by the record. We limit our review of the merits of the dispute to the second allegation regarding the improper search for medication in Mr. Shepard’s lunchbox.
There is a lack of substantial evidence to support the Carrier’s conclusion that the Claimant searched the Mr. Shepard’s lunchbox to find medication. The only witness to provide evidence regarding the allegation is Motor Vehicle Operator Michael Bucholz. The Board finds his testimony inconsistent with the written statement of his interview with the Human Resources (“HR”) Director Hannah Stadheim on November 7, 2018. Mr. Bucholz’s conflicting statements while testifying and when compared to the written statement, renders his testimony unreliable. He first testifies that while in the breakroom with other employees he saw the Claimant leave the room and return with the lunchbox, indicating that the refrigerator was in another area. The record is unclear as to whether Mr. Bucholz
could see the refrigerator from the breakroom. He later stated he was not sure he saw him bring the lunchbox into the breakroom. Furthermore, while Mr. Bucholz states other employees were in the breakroom, there is no corroborating testimony from other employees. He also does not testify that he saw the Claimant go into the lunchbox as he did in his written statement. Mr. Bucholz indicates that he could not be sure of the Claimant’s actions since it had been more than a year since the incident.
In addition to Mr. Bucholz’s unpersuasive testimony, Inspector Christopher Davis complained during his testimony that the written statements submitted by HR did not accurately document the information he provided when he was interviewed. Mr. Bucholz’s inability to confirm the accuracy of his written statements and Mr. Davis’ concern with the omission in his statement cast doubts on the trustworthiness of the documentary evidence submitted by the Carrier. Consequently, such discrepancies render Mr. Shepard’s written statement to HR of little evidentiary weight. As the primary focus of the Claimant’s alleged misconduct, Mr. Shepard’s failure to testify and corroborate the accuracy of his written statement provided to HR on November 1, 2018, renders his statement unreliable. Moreover, we find the inaccuracies noted in the documentary evidence when compared to the contradictory testimony from witnesses, to further dimmish the trustworthiness of the allegations. Given the Board’s conclusion that the written statements submitted by HR are unreliable, we cannot rely on the documentation of Mr. Shepard’s interview without his testimony.
Based on the foregoing we find that the Carrier has not established substantial evidence that the Claimant violated Rule 1.6, Conduct. The Claimant shall be reinstated with his seniority unimpaired. Upon a review of each parties’ arguments and supporting arbitral precedent regarding a proper compensatory remedy, the Board finds the Claimant shall be made whole for lost earnings including a reasonable calculation of overtime at the applicable rate of pay, he would have been able to work during his time out of service. Deductions for outside earnings shall be made to the back pay with received. Back pay shall be contingent upon the Claimant providing the Carrier with reasonable proof of income while out of service, including tax records. Any other monetary remedies requested not expressly referenced herein are denied.
In summary, we have reviewed and carefully weighed all the arguments and
evidence in the record and have found that it is not necessary to address each facet in these Findings. We find the Carrier has not provided substantial evidence that the Claimant violated its rules.
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 28th day of January 2022.