Award No. 44677 Docket No. MW-45868

22-3-NRAB-00003-200345

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

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

PARTIES TO DISPUTE: (

(Connex Railroad, LLC. STATEMENT OF CLAIM:

“Claim of the System Committee of the Brotherhood that:

The discipline (dismissal) imposed upon Mr. J. Canty, by letter dated February 28, 2019, in connection with allegations that on several days, during the month of January 2019, reports from the GPS unit installed in the vehicle assigned to Mr. J. Canty conflicted with the description and location of work performed on his timesheets and time claimed was not on or near a VTMI jobsite was arbitrary, excessive and in violation of the Agreement (System File N70196319 CNX).
As a consequence of the violation referred to in Part (1) above, the Carrier shall reinstate Claimant J. Canty to service and remove the discipline letter and all matters relative thereto from his personnel file and make him whole for all losses suffered including vacation and retirement credits.”

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.

Claimant J. Canty established and held seniority within the Carrier’s Maintenance of Way Department. Between the dates of January 22 and January 31, 2019, the Claimant was assigned as a trackman working outside of his normal bulletined hours of 0700-1530 (Tuesday through Sunday) on temporary assignment with a night surfacing gang.

In this case, the Claimant was disciplined for falsifying payroll records by claiming time worked that he did not actually work. In early February 2019, an audit was conducted of the Claimant’s time recordings by comparing the time he allegedly worked with the GPS unit installed in his Carrier-owned vehicle. The review revealed discrepancies from January 22, 2019 through January 29, 2019 and totaled about thirteen hours of time, including some overtime.

As a result of its review, the Carrier sent a notice of investigation dated February 8, 2019, scheduling a hearing on February 19, 2019 for the purpose of determining the facts and the Claimant’s responsibility relating to the falsification of time worked that was recorded on his payroll time sheets. Both the Claimant and his BMWED-IBT (“Organization”) representative were present. Subsequent to the investigation, the Carrier determined that there was substantial evidence that the Claimant violated Rule 1.6 Conduct Rule and Standards of Behavior of the Transdev Employee Handbook regarding fraud and dishonesty and he was dismissed.

By letter dated March 22, 2019, the Organization filed a timely claim on behalf of the Claimant asserting various procedural violations including that the Carrier failed to provide a specific charge in its letter dated February 8, 2019, thereby

hindering the Organization’s ability to mount an adequate defense. The Organization further objected that the Claimant had not received a copy of the transcript and that he was disciplined when removed from service on February 7, 2019, two (2) weeks prior to the hearing held on February 19, 2019. On the merits, the Organization contends that the discipline imposed was excessive.

The claim was properly handled by the Parties at all stages of the appeal up to and including the Carrier’s highest appellate officer. The matter was not resolved and is now before this Board for resolution.

In reaching its decision, the Board has considered all the testimony, documentary evidence and arguments of the parties, whether specifically addressed herein or not. After careful review of the record, the Board finds no procedural error sufficient to disturb the discipline. On the merits, we find insufficient evidence to substantiate the charges of falsification against the Claimant. Falsification requires specific intent to defraud. Here, the Claimant pre-signed timesheets that were completed by his supervisor. Time information was relayed through text messages and the location of the vehicle via the GPS readings was not a foolproof method of pinpointing the Claimant’s location. The transcript reveals testimony that suggests other reasons could explain discrepancies like using his personal vehicle or spending extra time engaged in a job briefing or walking around his truck as was pointed out by the Hearing Officer.1

In this case, at most, the Carrier has established inaccurate recordkeeping on the Claimant’s part. There is no evidence of an on-going practice to deceive the Carrier in connection with the Claimant’s pay. And since discipline is for the purpose of correcting behavior that can be corrected, given the Claimant’s combined 20-year employment history with the Carrier and its predecessor, and unblemished disciplinary record, this Board finds that termination was excessive. The Claimant shall be reinstated with a 10-day suspension for inaccurate time reporting. The Claimant shall be made whole less the 10-day suspension. The back pay awarded to the Claimant shall be reduced by any outside earnings received during the period of termination in accordance with Rule 19, Paragraph 1. G. of the Agreement between the parties.

1 See pages 52-53 of the transcript.

AWARD

Claim sustained in accordance with the Findings.

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 28th day of January 2022.

THIRD DIVISION AWARD 44677 – Docket 45868

(Referee Jeanne Charles)

The Carrier respectfully dissents to the award’s determination that the termination of J. Canty was excessive and amending the discipline to a 10-day suspension. As noted in the award, it was abundantly proven on property that J. Canty stole approximately 18.25 hours of pay during a single pay period, including unworked overtime, by submitting falsified time sheets. After submitting falsified time sheets, that he signed attesting the time was accurate, J. Canty improperly received pay of almost half a week worth of time not worked.

The award places emphasis on the fact that J. Canty’s offense was unintentional. However, the evidence reviewed on property points to the contrary. While J. Canty’s practice of pre-signing timesheets and texting his time to the Lead Operator is the type of arraignment that could foreseeably lead to unintentional errors, that was not the case here. The number of hours J. Canty reported to work on any given day fluctuated between 5 and 10 hours. Accordingly, his timesheets were atypical in the fact that he could not simply rely on the fact that he “probably” worked a specific number of hours on a given day. J. Canty knew he had he was required to track and accurately report his hours. His failure to do so cannot be viewed as unintentional.

Additionally, the award ignores the fact that J. Canty claimed 8 hours of regular time and 1 hour of overtime on January 24, 2019, when he was not present at work at all. His absence was not only demonstrated by the GPS records, but also affirmed by the fact that he did not sign in for the Job Briefing at the beginning of the shift – a requirement of federal law. J. Canty was clearly not at work on January 24, 2019, yet somehow “accidentally” claimed to have worked not only a full 8-hour day, but also an hour of overtime. This does not logically compute.

Even if J. Canty’s offense was unintentional, which it was not, his termination was still proper and warranted given the circumstances. J. Canty received pay for almost a half a week’s worth of work, including overtime, for work not performed. The pay he received should have been used to pay someone, whether J. Canty or another employee, to perform the work he should have performed. Accordingly, his actions not only negatively affected the Carrier, but also detriment his colleagues, riders, and the community as a whole as the performance of his job directly determines the safety of the railroad line. Therefore, J. Canty did not just receive money that was not owed to him, but he received money that was intended to be used to ensure safety on the line.

The award notes that there was no evidence that falsifying timesheets was an on-going practice by J. Canty. However, given the blatantness in which J. Canty bloated the hours on his timesheet, it may be presumed that this was neither the first time he had falsified his timesheet, nor the last time he intended to do so.

The other reasons to account for the time discrepancies noted in the award such as using a personal vehicle, engaging in a job briefing, or walking around his truck do not explain the enormous gaps in time claimed to have been work. J. Canty should not have been using his personal vehicle. Carrier vehicles are equipped with GPS devises for safety reasons, so that employees may be quickly located in the event of an emergency and to apprise the Carrier of what segments of the tracks are occupied to avoid accidents. If J. Canty was using a personal vehicle, he was not given permission to do so by the Carrier and would have been well aware that use of a personal vehicle at work presented a safety violation.

Claims that discrepancies were caused by extra time at job briefings also fail. The GPS on J. Canty’s vehicle identified him to be at his place of residence when he claimed to be working. Because job briefings are not held at J. Canty’s home, this could not have been the cause of his inaccurate timesheets.

Concerning the claim that J. Canty spent the time inspecting his truck, it must be noted that the shortest amount of unworked time claimed was 17 minutes. Other than a similar claim the day before for 21 unworked minutes, all of his falsifications exceeded an hour. Obviously it took J. Canty over an hour to inspect his truck, there would been something wrong with it that he did not report to the Carrier. For the 2 shorter periods, it is unlikely that it would have taken J. Canty even 17 minutes to inspect his vehicle, especially given that he allegedly spent 21 minutes the day before doing so as well.

Simply stated, an award to amend discipline assessed to an employee should not be rendered unless the circumstances prescribe amendment. None of the reasons listed in this award justify amending J. Canty’s termination to a 10-day suspension. Accordingly, the Carrier respectfully dissents.

Timothy W. Bubenik Kristin C. Beckner