Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 45153 Docket No. MW-47775
24-3-NRAB-00003-221054
The Third Division consisted of the regular members and in addition Referee Diego Jesús Peña when award was rendered.
(Brotherhood of Maintenance of Way Employes Division - (IBT Rail Conference
PARTIES TO DISPUTE: (
(BNSF Railway Company (former Burlington Northern (Railroad Company)
STATEMENT OF CLAIM:
The discipline (dismissal) imposed upon Mr. M. Flores, by letter dated July 2, 2021, for alleged violation of MWOR 1.6 in connection with his alleged theft of tools and dishonesty was on the basis of unproven charges, arbitrary, excessive and in violation of the Agreement (System File C-21-D070-17/10-21-0236 BNR).
As a consequence of the violation referred to in Part (1) above, Claimant M. Flores shall now be reinstated to service, have his record cleared of the charges leveled against him and he shall be compensated in accordance with Rule 40G of the Agreement.”
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 Martin Flores worked as a grapple truck driver in Scottsbluff, Nebraska in the Carrier’s Maintenance of Way Department for 27 years prior to being dismissed for dishonesty and theft. Prior to 2021, the Claimant had no history of being disciplined for any infractions.
On June 4, 2021, Roadmaster Clayton Maddox, the Claimant’s supervisor, received an inquiry regarding an invoice showing that the Claimant had purchased several tools, including an angle grinder and an air impact. Maddox asked the Claimant about the invoiced tools. The Claimant responded by telling Maddox what the invoiced tools were used for and that his co-workers—the welders—were responsible for storing the tools. Maddox then asked the welders about the tools; they told Maddox they didn’t know where the tools were located. When Maddox attempted to follow up with the Claimant, he could not find him and discovered that the Claimant’s vehicle was no longer on company premises. Approximately 10 minutes later, the Claimant returned to the company parking lot driving his personal vehicle. The Claimant told Maddox that he left momentarily to run an urgent personal errand and that the invoiced tools were in his personal vehicle. The Claimant immediately transferred the tools from his personal vehicle to his company vehicle. After this discussion, Maddox reported the situation to the Carrier’s Resource Protection group, who then assigned Senior Special Agent Matthew Shannon to investigate.
Shannon contacted the Claimant that same day. The Claimant admitted that the tools were not located in his company vehicle or on company premises when Maddox asked earlier. When asked why the tools were in his personal vehicle, the Claimant failed to provide Shannon with clear and direct answers. Later that day, the Carrier issued a notice of investigation.
The investigation was conducted on June 18, 2021. On July 2, 2021, the Carrier dismissed the Claimant for dishonesty and theft.
The Carrier maintains that the record supports its decision to dismiss the Claimant, and that dismissal is appropriate. Maintenance of Way Operating Rule (MWOR) 1.6 states that employees must not be dishonest. The Carrier points to several inconsistencies in the Claimant’s explanations regarding the location of the tools. It also points to the fact that the tools were not located in a BNSF vehicle or company premises but were instead located in the Claimant’s personal vehicle.
The Carrier argues that dismissal is appropriate in this case. It points to its Corporate Policy Employee Performance Accountability policy (“PEPA”), which states that theft or dishonesty are violations that may result in dismissal. After reviewing the circumstances, the Carrier concluded that despite the Claimant’s 27 years of service, dismissal was appropriate. The Carrier believes that despite the Claimant’s stellar long- term career, dismissal was appropriate given he was found to have engaged in dishonest conduct and theft.
The Organization argues that the Carrier failed to meet its burden of proof. Because the Carrier is charging the Claimant with theft and dishonest conduct, a higher standard of proof is required than substantial evidence. In cases where theft or dishonest conduct is charged, the evidentiary standard to be applied should be clear and convincing evidence. The Organization also argues that there is no evidence that the Claimant intended to be dishonest or steal any company tools.
The Organization also argues that the discipline imposed by the Carrier on the Claimant was excessive and unwarranted, given the Claimant’s dedicated 27 years of service and no history of discipline.
The Board sits as an appellate review forum in discipline cases. As such, it does not weigh the evidence de novo. The Board’s function is not to substitute its judgment for that of the Carrier, nor decide this matter in accord with what the Board believes should have been decided had it been the Board’s decision to make. Rather, the Board’s inquiry is to determine whether sufficient evidence exists to sustain the discipline
imposed by the Carrier. If there is sufficient evidence supporting the Carrier’s decision, then the Board cannot disturb the penalty unless the record reflects that the Carrier’s decision was unjust, unreasonable or so arbitrary as to constitute an abuse of discretion.
The Board has carefully studied and examined the record and finds insufficient evidence to uphold the Carrier’s charges. While the Board notes there is some evidence the Claimant engaged in questionable conduct, the Board finds dismissal was too severe on this record, given the lack of substantial evidence establishing intent to deceive or steal. The record did establish that the Claimant had company property in his personal vehicle in violation of Maintenance of Way Operating Rule 1.19 which states that railroad property should be properly stored on company premises. Therefore, the Board finds that the discipline must be reduced from dismissal to a Serious Level S Suspension for 30 days with a 36-month review period to commence upon his return to service and the Claimant is to be reinstated with no back pay.
The claim is sustained in part. The Carrier shall immediately remove the dismissal from the Claimant’s record, showing the suspension described above, and reinstate the Claimant, subject to the policies on return to work with seniority. Any other claims for compensation not specifically granted in this award are hereby denied.
AWARD
Claim sustained in part in accordance with the Findings.
ORDER
This Board, after consideration of the dispute identified above, hereby orders that an award favorable to the Claimant be made in accordance with these Findings. 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 22nd day of February 2024.