BNSF RAILWAY COMPANY
(Former ATSF Railway Co.)
Case No. 401 ._ Award No. 401 (Baca)
Carrier File No. 14-1 0-0195
Organization File No. 150-13D2-107.CLM
Public Law Board No. 5850, upon the whole record and all the evidence, finds that the parties herein are Carrier and Employees within the meaning of the Railway Labor Act, as amended; that the Board has jurisdiction over the dispute herein; and that the parties to the dispute were given due notice of the hearing and did participate therein.
Claimant, Marvin .T. Baca, has been employed by the Carrier since 1984. On August 1?, 2010, the Carrier charged Claimant to attend an investigation "tar the purpose of ascertaining the facts and determining (his) responsibility, if any, if connection with (his) alleged falsification of time can Friday, July ??, 2010 at 4:2$ pm. while working as a Welder." The letter stated that the investigation would determine possible violation of Maintenance of Way Operating Rule 1.6 Conduct. Following the investigation, which was held eon September 2, 2010, the Carrier determined that Claimant had committed the violations alleged and assessed him a Level S 30-day record suspension and a cane-year review period.
Sherri Ellis, Roadmaster for Belen and Albuquerque, testified at the investigation that Claimant teas her direct report at the time of the incident. She stated that the Carrier requires her to approve a. tune use review between the I'x and 5"` of each month, and during her August 2010 review, she noticed some discrepancies between the actual events of July ?2 and w=hat had been reported for that date. Specifically, she noted that Claimant tend his co-worker had paid themselves for one hour of overtime can July `?2. The time review document vas entered into evidence at the investigation. The document indicated that Claimant and Mr. Frireported the overtime into the system the next rr#orning, July 23.
GIs. Ellis explained that on the day in question most of the support gangs and welders were working in Track 71()5 to support tie distribution for the rail yang which would begin working there the next week. She stated that she called in welders for overtie, and, at about 1 550 hours, site had a truck delivery of plates. She added that at 1 6-'0 :she event back to the depot to meet with various Carrier officers, and at that time she observed Claimant and Mr. Frias leave the property, at about 1630, in neon-Carrier vehicles which she assumed were their personal vehicles. At a later point in the investigation, she ctaritied to state that she saw Mr. Frias leave at about 1628, and Claimant leave a few minutes later, at about I63?. Claimant's normal work hours were 730 to 1600 hours.
property because at approximately 1645 or 1650 she returned to the ,jobsite to brie, with the Track Supervisor and stayed about 45 minutes. She stated that she then Jett the johsite to get dinner for the employees, returned, and vas there until about ,just before 1900. She stated that she did not see Claimant at the jobsite. She added that she vas not aware that any Carrier Officer had changed Claimant` s assignment that day, and she was I:ot aware that any employees were working at the t 105 crossing on tie east end.
Track Supervisor Gerardo Gonzalez, Belen Yard, testified that on the day at issue he had employees working in the 71 05 track distributing plates for a gang that would be coming in to re-lay same rail in the yard. He stated during the afternoon the employees took a break, anti they were on the cast end of the yard and were re-briefing. fie stated that at about 2 pm. he called Claimant and Mr. Frias to tome to the east end of the yard to help distribute; the plates in 7105. He stated that after that he left the premises at about 2:30 car 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" that they had shown up there without his seeing them. fie added that he did not red to that jobsite that clay. 1le also stated that it vas possible for another Track Supervisor to assign the employees to other tasks but they would have contacted him first. Mr. Gonzales testified that later that afternoon fie eras with Ms. Ellis in a conference room at the depot, talking about the izext day's work.
A written statement from Mr. Gonzalez, elated September 1, 2010. was read into evidence at the investigation, over the Organization's objection. It recited that at about 1630, when he and GIs. Ellis were sitting in the conference room, they observed r. Frias pulling out of the parking lot anti leaving the property. He stated that ibis. Ellis went to cheek on whether Claiant had done the same. fie stated that he did not see or speak to GIs. Ellis again until the next day. Mr. Gonzalez confirmed in live testimony that he saw Mr. Frias' personal truck leave the property at about l6')0.
Track Supervisor Ronald Fenstermacher testified at the investigation that at about 3 or 3:30 he saw Claimant and Mr. Frias at the cast end o' the yard assisting with throwing tie plates. fie stated that he did not recall assigning them~to any other tasks. :N1r. Fensteraher testified that he saw Claiant and Mr. Frias at the cast end of the yard wit about 3:30, but he left the: area at the end of his day, at about 3:30 or 4, acid slid not see them again.
A staterrtent from Bill W. Sanchez, who wits ,apparently ill and did not appear at the investigation, was entered into the hearing record. In it, Mr, Sanchez states that fie was tsked to work can a crossing can the east end of Track 5, and Claimant and Mr. Frias were sent to assist him, arriving at about 3:30 p.. fie recounted that they had a job briefing and theft continued the work for about 45 minutes, leaving the site at about 4:30 p.m. l fe stated that he continued working, loading tie plates can :mother loader, until about 7 pan.
Mr. Frias testified at the investigation that he was working as a welder, assisting Claimant, tan the day at issue. Ile stated that he and Claimant had finished certain tasks anti were heading to I3elen when Mr. Gonzalez called them at about 2:45 or 3 pm. to go to the east end of the yard to assist n distributing plates. He added that they slid s<}.
Fenstermacher and were then sent to assist Mr. Sanchez in clearing a crossing, arriving there at about 3:45. Ile explained that the work took about 45 minutes, finishing at about x:30 car 5 p.m. III: added that they then needed tot put the tools away. which took same time because the trucks were located a distance away. fie stated that this work took until
11bout 4:45, so utter they cleaned up arid prepared to lave they left the property at about 5:05 or 5-()7 p.m.
Mr. ljrias testified that he and Claimant did not leave at 4:3?. l le added that there %vas no one present to inform that they were leaving, and he did not see either Ms. h lks or \lr. Gonzalez at the depot. He stated that both Carrier Officers usually park their trucks in a. visible location, and he did neat see those trucks when he left for the clay.
Claimant testified at the investigation that he was working as a welder at the time of the incident, and that Mr. Gonzalez has instructed him and :qtr. Frias to work at Beavers. l le explained that when they finished, and were heading back to 13e len, Mr. Gonzalez asked them tea o to the east end of the Belen Yard for a job briefing for the crew, which they did, arriving at approximately 1 520 hours. He stated that they saw Nis. 1"'Ills there: when they arrived, but she left about 1() minutes later.
Claimant testified that a. few minutes later Mr. Fenstermacher instructed him and Mr. Frito assist Backhoe Operator Mr. Sanchez in clearing a road crossing at the east std cat 71(15. l to stated that they diet so for about 45 to Std minutes, and it was about 162'5 by the time they finished that work, He stated that with putting equipment away and related tasks, it was about 1635 to 1638 whets they headed to the depot. He added that the trip to the depot took another seven or eight minutes, so they arrived at about 1645. .fit that point, he added, they need to perform tasks such as, lockup, post trip inspection and logbooks.
end of the yard. He stated that the Roadaster had told him that it was acceptable to put in his tithe the following day.
The Carrier's Policy for Employee Performance Accountability (PEPA), provides drat an employee involved its a serious incident, as enumerated in the policy's Appendix 11, will receive a 30-day record suspension anti may be offered training to correct the underlying behavior. Appendix B lids as serious violations numerous safety infrtion as well as "other serious violations" of Carrier rule.
'fhe 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 w=ill be redued to 12 months for employees who have completed at least five wars' service and who have been iniury and discipline-free for that period. The policy also states that the circumstances surrounding a serious incident may reduce fen employee's personal culpability, and the matter may be handled according to the general E-uidelines, anti if thcre is any doubt super-visors are to err on the side of leniency.
av subject an employee to dismissal for a single ottense. Fhosie violations include: 1) Theft car other act with intent to defraud the carrier of monies or property not due.
Claimant's personal record shows no discipline for more than 10 years prior to the incident at issue.
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 coworker Greg Frias were 0730 to 1600 and. although Claimant claimed to have worked until 5;06 p.m. (1'705), one eyewitness, Roadmaster Sherri Ellis, saw him leave at 1630 and another saw Mr. Frias leave at 1628. Thus, the Carrier argues, while Claimant claimed one hour of overtime in the Carrier's timekeeping system, he left Carrier property only 30 minutes after his usual quitting time.
l'he Carrier states that it well established that in cases such as this one, where there is conflicting testimony, the .-fearing Officer must make credibility resolutions anti resolve that conflict. The f fearing 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 vas 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 2, 201(1, but July ?2 was in fact aThun-sday. This confusion should cause the discipline to lie overturned, the Organization urges, as Claimant and his representative were not able to prepare a proper defense. °1 `he Organization further argues that the Hearing Officer erred when it allowed the introduction of an obviously coached and rehearsed written statement from Carrier Officer Gerardo 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. Ellis' testimony vas questionable as she apparently determined that she needed this corroboration. Thus, the Organization urges, Claimant was denied his right to a fair anti impartial hearing.
On the merits, the Organization asserts that the Carrier's case against Claimant is based upon questionable statements, not concrete evidence sufficient to establish his guilt. 'The Carrier notes that Ms. Ellis claimed to have discovered Claimant's violation when she reviewed time slips some tO to 15 days aver the incident, and her contention that she had absolute recall that he left the property at 1632 that day is not c=redible. The Organization also notes that Ms. Ellis conceded that she was not aware of any job assignment changes for Claimant that day, which would explain why she did not see him at the job site distributing plates anti instead assumed he left early. The Organization also points out that ifs. Ellis' memory as to exact times was much better when site was questioned by the Hearing Officer than try the Organization representative. The Organization concludes that the Carrier has not proven by substantial evidence that
;Ve have carefully reviewed the record in its entirety. First, we fttd no evidence airy procedural irregularity which denied Claimant his right tea a air and impartial Hivcstigation. On the merits the instant case presents a classic case of contpeti;cg, factual
ci-:siocts of an event. Claimant and Mr. Frias were working together at all tines. Fw« Carrier officers state that they saw Claimant leave the property approximately one-half hour after his usual quitting time, and cane Carrier officer also testified firmly that slic aw
Ir. Baca leave at about the same time. The two employees pint in t.«r one hour of w,ertirne t*av, and both contended that they worked mare than one ext-a hour and ;lief slot leave the property at the time alleged by the Carrier. hhe record also Includes a writtelt l1carsay statement from another employee, who did not testify zit the investigation, holsterin=g Claixanfs account. Thus, the facts of this case turn upon tile crcdihiiity resolutions of the Hearing Officer, who credited the accounts of the Carrier witnesses. It is well established that credibility resolutions are not the province cat` this Board absent c--vidence that tire Hearing Officer's determinations are unreasonable or lacking in record support. There is no such showing here. There is room for disagreement, lout the (`arric:r o"fercd live testimony from two supen=isors to the effect that the Claimant and his caWorker left earlier titan they claimed. `I"his provides a reasonable basis in the record for the l fearing Officer's determination. Thus, based upon the accounts of its witnesses, tile Carrivr lids proven Claimant"s guilt lay substantial evidence. The discipline was assessed
n accordance with the fEPA, and rye cannot say that it represents art unfair car arbitraryB: N NI I-SEN
SIC tral ,ember
