Brotherhood of Maintenance of Way Employes Division of the International Brotherhood of Teamsters PARTIESJO DISPUTE; and BNSF Railway (Former ATSF Railway Company)

 STATEMENT OF .AIM:
















A_NDCQPINION:
Upon the whole record and all the evidence, the Board finds that the Carrier and Employ ees ("Parties'") herein are respectively carrier and employees within the meaning of the Railway Labor Act, as amended, and that this Board is duly constituted by agreement and has jurisdiction of the dispute 1.

 The Claimant in this case, Mr. Casey D. Rael, entered the service of the Carrier in 199?. He was employed in the Carrier's Maintenance of Way Department- He was working as a Lead Welder, headquartered at Belen, New Mexico, on May 6, 2005, when an incident occurred which eventuated in hiss dismissal from the Carrier's service. On May 13, 2005, he was served a notice of charges and directed to attend an investigation on May 20, 2045. The purpose of the investigation mass stated as follows:


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 Public Law Board No. 4244 Award No. 358
 Case No. 365

By mutual consent, the investigation was twice postponed and finally held on June 1 ?, 2005. The Clams was capably represented by the Organization's Vice General Chairman. A transcript of testimony and evidence was prepared and appears in the record before this Board. Direct testimony was offered by the Ctat and Welder Trace Eleario Rives, Sr., an eyewitness to the incident under investigation. Roadmaster W. Gary Gomm also presented direct testimony. Special Agent Nicholas C. Archuleta entered in eves a police incident report prepared by a Police Offer in the Los Lunas, New Mexico Police Department. Mr. Archuleta stated that was tier extent of his knowledge about the incident.

 There is substantial conflict 9n the evidence and testimony. An altercation occurred which was the genesis of the entire incident. The description of the altercation given by the Claimant and Mr. Rivas is largely in accord. The other party in the altercation did not appear at the investigation. His testimony, and that of another witness, were spoken to the Los Limas Police 0, and appear in the incident report. Not surprisingly, the accounts given by the antagonists are at variance in several points. The statements of the other parties recorded in the incident report are clearly hearsay, and will be given little weight.

 Mr. Rivas, who was with the Claimant when the altercation began, was asked to describe what he know of the incident. His description is found at Transcript Answer No. 43:

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 Case No. 365

Upon fixtler questioning, Mr. Rivas stated that the Claimant said nothing to him about the telephone call he had received. When the police offers arrived, Mr. Rivas gave them the knife that he had retrieved from the "other guy." He described it as a black, closed, pocket knife. He was asked if he ever saw the Clam with a knife, and said he did not.

 There is testimony in the record (which is confirmed by examination of a map) that Los Lunar is on the route and intermediate between the Clam's point of origin and the destination work site on the day of the incident herein.

 The Cue's description of events differs little from that offered by Mr. Rives. He was asked to give his version, and his response is found in the following testimony:























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'The person identified as "Carlos" dud not appear the investigation His version of the events appears in the incident narrative prepared by the Los Lungs Police Off. which is appended as an exhibit to the tramcript. It states:














The Police Officer then interviewed the Claimant's former wife and entered the foIlowing in the incident report:











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 Case No. 365




both arms and nose area Carlos has physical injuries on his right arm and left leg." Both the
 Claimant and Carlos were arrested, and both refused treatment for their rajuries. They were each
 charged with Public affray, Assault, -attempted battery, Aggravated assault-deadly, and
 Battery. Spacial Agent Archuleta `bed the meaning of these charges, at Answer No. 190:

Although Mr. Archuleta said his knowledge of the incident was firnited to the Los Lunas police report, the Conducting Officer asked him fur his opinion about the offenses in that report:







After the Claimant was arrested, la: called Roadmaster Gomez from the jail to explain why he was not on the job, and to advise that he was in the process of arranging bail. Mr. Gomez was asked what the CWmant had said in explanation of the events:










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 Public Law Board No. 4244

 Award No. 358
 Case No. ass

 As noted above in Answer No. 225, the Claimant said he put his knife in the truck. The incident narrative records what happened when the police officers arrived on the scene:







Roadmaster Gomez was called to the scene to take charge of the Carrier's truck. The incident narrative continued:




Mr. Gomez testified that he was called to pick up a welding truck in Los Lunas. When he arrived, the Claimant had already been removed from the scene. He said that a police offer wanted a witness as he removed a knife from the trucL He was questioned by the conducting Officer.

He said that when he got there he witnessed Casey walking to the
 truck and he got in the truck and he got down. That's all the cop,
 officer told me. He said he witnessed Casey walking, Mr. Reel
 walking towards the welding truck. Mr. Reel got up in the truck,
 and the officer had him get out of the truck. For what reason he
 searched the truck, I don't know: He didn't, the officer didn't tell
 me that.

 95. Q. Was there anything abnormal about this knift?
 Am Not really. It, . . .

 A.

 96.

 Did it have blood or anything on it like that? There was a, a little, there was this little spot of blood on the handle part of it.

 97. Q. Was it fi~esh blood?

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 Case No. 365
 A. I didn't really look like it.

















Mr. Gomez was questioned further about the knife, on cross examination by the Claim. ant's representative:










. . . And you don't know if this knife was in the console, if it would, had any participation whatsoever in this fight? All you know it was in the console of the truck, correct?

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 Public Law Board No. 4244 Award No. 358
 Case No. 365

 On redirect examination:







The Claimant described the knife he possessed as one used to open boxes of welding materials at work, and he admitted that he placed it in the console, but denied that he had pulled it on his antagonist. He further testified:








On July 15, 2005, the Carrier's Southwest Division General her advised the Claimant the Carrier's decision on the investigation:

above disciplinary decision was promptly appealed to the Carrier's Labor Relations
 Depart by the Organization, which points out that all criminal charges against the Claimant

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 Public Law Board No. 4244 Award No. 358
 Case No. 365

 have been dismissed. After mNiewing the testimony offned by the Claimant and Mr. Rivas, the Organization notes that the Clue was only a block away at the time his mother called him because she was being attacked. When he responded to his mother's call, he was attacked and an attempt was made to pull a knife on him. The Organization comments:

It Rather argues that the Claimant did rot fight with another employee of the Carrier, nor did he pull a knife on another person. The Carrier has lost no business because of this incident, and the Organization points out that the Claimsnt was rein. after the incident, only to be dismissed later because of the charges -- later dropped -- brought by the Los Lunas Police Department.

 The Organ acknowledges that a knife was found in the truck, but it was used in his work, and there is nothing illegal nor ague Carrier policy in carrying a pocket knife. It suggests thaat the Claimant is guilty of nothing except defending his mother and children against violent attack from another person. The Organisation asks that its appeal be sustained.

 The Carrier responds that during the course of the investigation substantial evidence was developed that the Claimant was in "gross violation" of all the cited Rules. It points out that the Carrier satisfied its burden of proof when the Claimant admitted to violation of the charged Rules in the following testimony:







The Carrier further argues that it is irrelevant whether the crymmal charges were dismissed. It argues that responsibility for viol a Carrier Rule is indent of the state's court system. In this case, it asserts, divnissal is not harsh nor arbitrary. The claim was denied.

 Board has studied the transcript and accompanying exhibits, and considered the arguments of both Parties. Both have offered well-prepared positions. The Board has also given thoughtful regard to the Rules cited in the notice of charges and the disciplinary decision.

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 yof Way Ooeratse Rule aff= 1 .6











The Claimant was in violation of the above Rule when he left his assigned duties and went to the nearby place where he encountered his former wife's boyfriend. He was careless of his own safety and negligent of his duties.

The Claimant violated the above Rule when he entered into an altercation while on duty. There was some conjecture in the record about whether this Rule addressed altercations with someone no an employee. The Board believes that although tie Rule could perhaps be worded more comprehensively, it would be ridiculous to permit an on-duty employee to enter into an altercation with a non-employee, without consequences. A fight's a fight.

 MWOR 1.9


There is no evidence whatsoever that the Carrier suffered any criticism for the actions of the Claimant.

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 ~WOR 1.12



that the charged employee had in hiss possession a firearm or other deadly weapon, including
 knives with a blade longer than three inches. The record fads to indicate the precise length of the
 blade of the knife which the Claimant admittedly placed in the truck's console. His act in
 attempting to hide the knife was an give, ill-conceived decision, and rightfully caused
 suspicion to fall on him, resulting in a seamh and disclosure of the object,

 The blade was not measured, and although it apparently had a blood spot on the handle,' there is no testimony, not even in the police incident report, that the blade was opened to find out if the blade was bloody. The incident narrative, however, states that the Clai nant hard cuts on both arms and nose area, but the "per injuries" sufibred by "Carlos" are not described as cuts. The blood spot on the handle may have easily come from cuts on the Claimant, himself; and without fiwthw "ewe that the blade was bloody, or that the blood spot on the handle was that of "Carios," the Carrier has filed to carry its burden of proof that Claimant had a knife with a blade longer than three inch, nor any other "deadly weapon."

The Claimant violated the above Rule when he left his assignment without proper authority, to intervene in the dispute taking place at his mother's residence- In doing so, of course, he was not spending his on-duty time "woridng only for the railroad.-

 'The record contains no forensic analysis of the spot to indicate whether it was blood or some other substance.

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 Caws No. 365

 MM 1.19


The Cwt was driving a vehicle owned or leased by tie carrier. He put it to personal use when he drove off his mute to the work site, toward his mother's home, notwithstanding the detour was a relatively short one.

 Mgynkna= of Way Saay,,AW2 S-1.2


The CWmant placed himself in a place of danger when be left his assigned duties to enter a tense situation, one which resulted -- as it turned out -- in injury to himself
altercation and surrounding events, to Roadmastar Gomez, as the dismissal letter alleges. The
 record iris that after the Cwas arrested, he called Mr. Gomez {who already knew of
 his arrest, of course, having come to the site of the altercation after the Claimant was taken
 away}, and told him what hap After being bailed out of jail, he cane by Mr. Gomez's
 office and discussed the matter further.

 The Claimant did not obtain permission to divert from his intended route to the work site, to respond to the call from his mother. It almost goes without saying that no on-duty employee can just leave his place of duty, without the permission of a supervisor. Mr. Gomez was asked about this policy:





Did Mr. Reel, again, ever contact you?

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 Case No. 365

Clearly, however, there are mitigating circuses. The Claimant received a distressed call from his mother, apparently without a husband or other male figure present to act in her defense, confronted by an angry, estranged daughter-in-law, who was accompanied by a boyfriend. The Organization argues that even the Claimant's supervisor said he would have responded to such an incident involving his own family. That testimony is found in the record, Roadmaster Gomez questioned by the Claimant's Representative:








Mr. Gomez's candid response begs the question, however. "[Mot in a company vehicle." He is correct with respect to the letter of the Rule, of course -- a company vehicle may not be used for personal business without permission - but the exigent circumstances were that the Claimant's company vehicle was just a block or two from his mother's residence. His personal vehicle was, according to the record, some 15 to 20 minutes away, back at his point of origin. It would appear ridiculous to suggest that he drive all the way back to Belen to swap vehicles and return to the same neighborhood from where he had been. An alternative course of action was suggested when the Claimant was questioned by the Conducting Officer










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In retrospect, with the clear vision that leisurely coion of all the facts gives ass, the Claimant acted impetuously, angered by events, and without the luxury of time to weigh all available alternatives. His very proximity to the site of his mother's residence allowed little time to balance one course of action against another.

 Turning to the Parties' arguments, the Board agrees with the Carrier's position that the dismissal of the criminal charges against the Claimant has no bearing on the charged violations of the Carrier's Rules. The quantum of proof in a criminal case is much greater - beyond a reasonable doubt - than in a disciplinary hearing, although we are inclined to demand a burden of proof greater than the customary arbitral quantum - either preponderance of the evidence or clear and convincing proof - when a claimant is dismissed and/or issues of moral turpitude are involved. In any event, a prosecutor may elect not to pursue a case for any number of reasons,, including work load and higher priority cases.
Police Officer by any of the parties. They all core into the investigation as hearsay statements,
 the Police Oflicer describing in an official document what he was told by others. Neither the
 Police CUB nor "Carlos"' nor C L were mwent so they might be directly ques
 tioned and cross examined, and their credibility tested and judged in person. Their statements
 may be altogether accurate --- the identification of the "silver in color pocket knife" possessed by
 the Cart lends some credit to their story (did C L know that her ex-husband
 habitually carried a silver knife?) -- but without corroboration, the Board is not prepared to favor
 inconclusive hearsay testimony which conflicts with observed direct testimony.

 The Clams, certainly, does rot have clean hands. Mr. Rives, the only eye-wetness whose credibility could be tested, said that "the other guy" advanced upon the Claimant, preparing to fight. After their initial exchanges of blows, however, the Clad an opportunity to de:-escalate the situation. By his own words, in Answer No. 225, he admitted:

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 Public Law Board No. 4244 Award No. 358
 Casee No. 365

 He thus tars some responsibility for the continuation of their fight. His self-defensive posture changed to one of offense at that point.

 The Board is persuaded that permanent dismissal is an inappropriate disciplinary penalty. The mitigating circucnstamces have been discussed above, Le., the emotional impact of a domestic confrontation involving closely related loved ones. The Board is not convinced that all the charges have been proven, also discussed above. Against those factors, we have examined the Claimant's disciplinary record. In 1999 he was given a forma! reprimand for absence without authority. In 2004 he was assessed a record suspension for faihue to provide su:6cient sight distance when working on-track under lookout protection. That is not the record of an habitually quarrelsome employee.

 In consideration of all the issues discussed herein_ the Board determines that the Claimant's dismissal should be reduced to a lengthy suspension. The Claimant shall be restored to service with seniority and other rights unimpaired, without pay for time lost, no later than fifteen (IS) days from the date affixed below.

The claim is sustained in accordance with the Opinion. The Carrier shall return the
 Cto service within fifteen (15) days from the date affixed below.
-' . , .c .,
 R. B. Wehrli, Employe Member Samantha K. Rog Cirri ember
Date

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