SNSF RAILWAY COMPANY
(Former ATSF Railway Ca.)
Case Nn. :400 - Award No. 400 (Friar)
Carrier File No. 14-10-0196
Organization File No. 150-1 3D2-108.CLM
Public Law Board No. '5850, upon the whole record and (l the evidence, finds that the parties herein are Carrier anti Employees within the meaning of the Railway Labor Act, as amended; that the Board has jurisdiction over the dispute herein; and that tote parties to the dispute were given due notice of the hearing and slid participate therein.
Claimant. Greg Frias, has been employed by the Carrier since 1979. On August t -, 2010, the Carrier charged Claimant to attend an investigation "for the purpose of ascertaining die facts arid determining (his) responsibility, if any, if connection with (,his) alleged falsification of time on Friday, July 22, '010 at 4:28 p.m. white working as a Welder." The letter stated that the investigation would determine possible violation of .Vlaintenance of Way Operating Rule 1.6 Conduct. Following the investigation, which vas held on September 2, 2010, the Carrier determined that Claimant had committed the; violations alleged and assessed him a Level 30-day record suspension and a one-year review period.
,Sherri Ellis, Roadmaster for lelen and Albuquerque, testified at the investigation that she was Claimant's direct supervisor at the time cal" the incident. She stated that during her routine time review for the period July 16 through July 31, 220, she noticed some discrepancies between what was reported for overtime and hours actually worked. Specifically, she stated, Claimant had claimed one lour of overtime, until 1700, for July 22, ''01(x, but she saw him leave the property at 1628 on that date. She testified that she knew Claimant did neat red to the jobite after that tune because at approximately 1650 she went to the location where he and his co-worker had been working that clay and they were not there. She added that she remained at the jobsite until approximately 1 850 and did neat see Claimant gain.
M. Elks testified that she must always be aware of when her employees work overtime and she keeps a log of that time. She added that she expects employees to communicate with her in overtime situations, and she monitors the tune at which they complete their work. She stated that Claimant and his co-worker were welding on a frog early in the clay at issue, and Track Supervisor Gerardo Gonzalez called them to assist with laying out plates for a steel gang which vas to begin work the next day. She stated that she last saw Claimant at the jobsite at approximately 1600 when she delivered refreshments to the work group. Ms. Elks acknowledged that there is video surveillance in the yard, but she did not check to see whether there vas video of Claimant's movements that day and did not know if it was possible to do o.
Mr. Gonzalez testified that on the day at issue he had employees working in the ? 1 Cl5 track distributing plates far a gang that would be coming in to re-lay some rail in tire yard. FIe stated during the afternoon the eployees took a break, and they were on tire cast end of the yard and were re-briefing. tie stated that at about 2 p.m. he called Claiant and Mr. Baca to come to the east end of the yard to help distribute the plates in 71 05. He stated that after that he left the premises at about 2:3(1 or 3 p.m., from the east end of the yard, and went back to the depot, and he never saw the two employees arrive at
the east end, but was "pretty sure" they had shown up there without his seeing them. I le added that he did neat return to that jabsite that day. He also stated that it was possible for another Track Supervisor to assign the employ=ees to other tasks but they would have contacted him first.
A. written statement from Mr. GC7nzalez, dated September 1, '10 10, vas read into evidence at the investigation, over the Organization's objection. It recited that at about 1 630, when he and Ms. Ellis were sitting in the conference room, they observed Claimant's truck pulling cut of the parking lot and leaving the property. The statement recounted that girls. Ellis then went to check can the whereabouts of the co-worker, 'Vlr. Baca. In his live testimony, Mr. Gonzales stated that he had been in the depot holding morning conferences with Ms. Ellis, going over the next day's work, when, at about l 6 >0, fie saw Claimant's truck leave the property. Mr. Gonzales testified that later that afternoon he was with GIs. Ellis in a conference room at the depot, talking about the next day's work. Ile acknowledged that he did not physically see Claimant in the truck. Mr. Cionzalez testified that he was not at the jobsite where Claimant had been working in the afemoon after about 1430.
Track Supervisor Ronald fenstermacher testified at the investigation that during the afternoon he save Claimant and Mr. Baca at the ea=st end of the yard, performing setup support for a rail gang that would be coning in to the main yard. tie stated that he did not recall assigning them to any other tasks. Mr. Fenstermacher testified that he saw Claimant at the cast end of the yard, but he left the area at about 3:30 and clocked out at 4 p.m., so he did not see him after that.
Marvin J. Baca testified at the investigation that he vas working as a welder, with Claimant, at the time of the incident. tie stated that Mr. Gonzalez instructed them to pertorrn frog repairs at Beavers, New Mexico in the morning, and when they finished Tv9r. Gonzalez called. at approximately 1450 or 1500, and instructed them to head to the east end of Belen Yard to distribute tie plates. He stated that they arrived at that location at about 152,5. Ile added that Ms. Ellis was there when they arrived. He stated that following preliminary tasks and a job briefing from Mr. Fenstermacher, he and Claimant workd with employee Billy Sanchez to clean out a crossing in preparation for the steel gang. He stated that they actually began working at about 1540, and the task took 45 to 50 minutes to complete, so the employees finished at about 1630. Then. Mr. Frias stated, they had a job briefng to determine whether they needed to help the rest of the section distribute plates, but determined that they were neat needed, so they returned equipment to its proper places and left the area about 1640. Ile stated that they arrived at the depot at about 1645. Then, he explained, they cleaned up and performed post-trip inspection, so it was about 1705 when they finished and left the depot. lie stated that he did not see Mr. Gonzalez car Ms. Ellis when he returned to the depot. Mr. Baca testified that it eras not feasible that Claimant could have left the depot at 1628.
Mr. Baca explained that the employees only discuss overtime with a supervisor if the supervisor instructs them to perform that work. Otherwise, he stated, they simply do their work arid go home when finished. Mr. Baca acknowledged that he put in for eight
flours of overtime can the day at issue, but maintained that the time vas correct. as he actually worked a few minutes more than that.
Claimant testified that he left the Carrier's premises at approximately 1705, not 1 628, on the day at issue. He also stated that another employee at the Belen Yard has a
ehicle identical to his. I le also stated that he left the jabsite about 4:4(x, and arrived at the depot at about 4:50, leaving for the day at about 1705. He maintained that at 1628 they were still cleaning up for the day and putting their tools away. He stated that if Ms. Ellis had been traveling back to the jobsite they could not have missed one another because there is only one road upon which to travel. He stated that Mr. Baca had physically entered their time into the system, but he trusted him to do so accurately. Claimant also stated that the employees do not notify management when they finish for the day.
,1 statement from Bill W. Sanchez, who was apparently ill and did not appear at the investigation, was entered into the hearing record. In it, Mr. Sanchez states that he vas tasked to work on a crossing on the cast end of Track 5, and Claimant and Mr. I=rigs were sent to assist hire, arriving at about 3:30 p.m. He recounted that they had a job briefing and then continued the work for about 45 minutes, leaving the site at about 4:30 p.m. He stated that he continued working, loading tie plates on another loader, until about 7 p.m.
The Carrier's Policy for Employee Performance Accountability (PEf'A), provides that an employee involved in a serious incident, as enumerated in the policy's Appendix 11, will receive a 30-day record suspension and may be offered training to correct the underlying behavior. Appendix B lists as serious violations numerous safety infractions as we l l is -other serious violations" of Carrier rules.
The PEPA provides that a second serious incident within a 36-month review period will subject the employee to dismissal, except that the serious-incident review period will be reduced to 12 months for employees who have completed at least Five nears' service :and who have been injury and discipline-free for that period. The policy also states that the circumstances surrounding a serious incident tray reduce. an employee's personal culpability, and the matter may be handled according to the general guidelines, and if there is any doubt supervisors are to err on the side of leniency.
I~lie PPPA also provides that certain aggravated offenses, listed in Appendix C.'., may subject an employee to dismissal for a single offense. Those violations include: 1) Theft or other act with intent to defraud the carrier of monies car property not due.
The Carrier asserts that this case is not complicated. Simply put, the Carrier -states, Claimant put in for overtime he had not worked. The Carrier notes that the regular hours of Claimant, a welder, and his co-worker Marvin Baca were 0730 to 1600 and, although Claimant claimed to have worked until 3:C16 pm., two eyewitnesses saw hint leaving the property at 1 b''8, 4:28 p.m. In particular, the Carrier points out, Roadmaster
Ellis testified that she saw Claimant leave the property at 1628, and noted the time in a lot she maintains because all overtime must be approved by the Division Engineer. Ms. Ellis' testimony, the Carrier notes, was corroborated by that of Track Supervisor Gerardo Gonzalez. Thus, the Carrier argues, while Claimant claimed one hour of overtime in the Carrier's timekeeping system, the credible evidence demonstrates that he left Carrier property only 28 minutes aver his usual quitting time.
`the Carrier states that it well established that in eases such as this one, where there is conflicting testimony, the Hearing Officer must make credibility resolutions and resolve that conflict. '1 `he Hearing Officer credited the testimony of the Carrier witnesses, the Carrier stresses, and that determination should not be disturbed by this Board. Thus, the Carrier urges, it has proven Claimant's guilt by substantial evidence.
With respect to the penalty, the Carrier asserts that Claimant was dishonest, and such an offense is stand-alone dismissible under the Carrier's PEPA. Thus, the Carrier concludes, there is no reason for this Board to overturn the lesser penalty it assessed against Claimant.
The Organization raises procedural and substantive challenges to the discipline assessed against Claimant. First, the Organization notes that the investigation notice refers to Claimant's alleged violation as occurring on Friday, July 22, 2010, lout July 22 was in facct a Thursday. This confusion should cause the discipline to be overturned, the Organization urges, as Claimant and his representative were not able to prepare a proper defense. '1"he Organization her argues that the Hearing Officer erred when he allowed tine introduction of an obviously coached and rehearsed written statement from C:u~rier Officer Grardo Gonzalez, who was present at the investigation to testify. The statement, the Organization notes, was dated 41 days after the events at issue, and shows that Ms. labs' testimony was questionable as she apparently determined that she needed this corroboration. Thus, the Organization urges, Claimant was denied his right to a fair and impartial hearing.
Me Carrier's case against Claimant, the Organization cures, is based upon kluestionable statements, not concrete evidence sufficient to establish his guilt, The Organization notes that Claimant is a 31-year employee with an impeccable record. and.
even it' the Carrier was able to prove its charges, the discipline is excessive in proportion to the alleged offense. The Organization requests that the claim fee, sustained.
We hale carefully reviewed the record in its entirety. First. %v~_ find n o evidence of any procedural irregularitl- which denied Claimant his right to a fair :end impartial investigation. On the merits; the instant case presents a classic case ot`competing factual ersicans cat' an event. Claimant ;end Mr. Baca were working together at all tines. i'~vo
iA;Y 9',iI L,.SEN
N astral ?~ =anber