PUBLIC LAW BOARD NO. '1292
ATDA File No. BNF File No. NMB Case No. Award No.

 AMERICAN TRAIN DISPATCHERS ASSOCIATION

 BURLINGTON NORTHERN SANTA FE RAILWAY CO.

 STATEMENT OF CLAIM:
DA-1 CIO-09
 06-09-0243-D-DI
 19
 19

 BNSF RAILWAY COMPANY (hereinafter referred to as "the Carrier") violated

the current effective agreement between the Carrier and the American Train Dispatchers Association ("Organization"), including but not limited to Article 24(b) in particular when on February 6, 2009, the Carrier arbitrarily disciplined train dispatcher L. L. Allen, dismissing him from service without due cause and absent any demonstrated rules violation.


The Carrier must now overturn the previous decision to discipline the aggrieved and restore Mr. Allen to service. Further, it is now incumbent upon BNSF to make principle whole for any and all lost tune, including wages not paid as a result of attendance at the disciplinary hearing."


That the parties were given due notice of the hearing;

That the Carrier and Employees involved in this dispute are respectively Carrier and Employees within the meaning of the Railway Labor Act as approved dune 21, 1934.


That this Board has jurisdiction over the dispute involved herein.

 BACKGROUND

Lenny Allen ("Claimant") was hired by the Carrier on November 9, 1994, and at the time of the events leading to this appeal, he was assigned to work as a dispatcher at the


Carrier's Spring, Texas office. The Carrier operates a small local

 the Spring office with six dispatching desks, 24 regularly assigned dispatchers and nine

 center at
 PLB 7292
 Case No. 19
 Award No. 19

 extra dispatchers, whoa both train and fill vacancies. In addition, the center is staffed

 jointly by Union Pacific Railway employees anal

 (fin May 6, 2008, the Claimant called the Carrier and reported that he would a unable to

 The Claimant laid cuff fiVILA again can May 7,

 can May &, 2008, and that he had been incarcerated on

 May 6 and May 7, 240 8.

 By letter dated July IS, 2008 the Claimant vas instructed by the Carrier to attend an investigation on July l $, 008 regarding te following charge;


Following several mutually agreed postponements and a recess, the investigation was completed on January 20, 00. Following the investigation, a fetter of Dismissal dated

 February

As a result of investigation completed January 20, 20(19, you are hereby dismissed from the service of the BNSF Railway Company. Testimony at this


investigation confirms that you

 issued to the Claimant which states in pertinent pant as follows:

 and while incarcerated may 7, 2008 misrepresenting the reason you could neat work your dispatching assignment which is a violation of General Code oaf Operating Rule 1.6 Conduet, item 4.1)ishanest. (Emphasis provided)

A timely appeal protesting the issuance oaf the Letter of Dismissal was submitted by the organization and having been unable to resolve the matter during earner steps oaf the appeal procedure, the claim was submitted to this beard for final and binding resolution.
 PLB 'l?9?
 Case No. 19
 Award No. 19

 DISCUSSION
Tire Charges

By letter dated February 29, 2008, the Claimant had been approved for 12-months of intermittent FMLA leave during the period of February 18, 21108, through February 17,


2009. The basis for the FMLA leave was

issues and reported work related stress due to his having a variety of problems attending work consistently, which vas causing him to have attendance difficulties with his management team".


(fin the afternoon of May £i, 200$, the Claimant was stopped by local police for a traffic violation and he was subsequently placed under arrest and incarcerated. Following his arrest, the Claimant placed a phone call to the Carrier at 7:38 p.m. on May 6, 2(108, and informed the scheduler that he was laying off his 3Fd shift assignment because of an FMLA condition. The Claimant again contacted the Carrier at 6:50 p.m. on May 7, 2008, and informed the scheduler again that he was laying off his third shift for inlay 7 because of an FML,A condition.' The Claimant was subsequently released from custody on May 8, 2008, and he worked his regular 3rd shift assignment that evening.


The Claimant continued to work his regular schedule without informing the Carrier that he had laid cuff FMLA on May 6 and ?, 2008, while he eras incarcerated. Can July 11,


the Carrier received formal confirmation from the Harris County Sherriff's

 Department that the Claimant had been incarcerated on May 6 and 7, 2008.

 vas held with the Claimant and, during the investigation, he readily

admitted that he was in police custody on May 6 when he contacted the Carrier to lay off under the provisions of the FML.A that evening. He also admitted that he was still in custody when he again contacted the Carrier on May 7 to lay off under the FML.A for that evening. At the same time, the Claimant revealed that his call on flay 7 was made from a pay phone in the jail to one of his friends. According to the Claimant, his friend


subsequently relayed the call to the Carrier through a "t3-way call" so that the

 could speak directly to the scheduler to report he would be laying off

 1 the Claimant did not work teas shift on either of those nights.



evening. At the same time, the Claimant admitted that he had not informed the Carrier during either of those calls that he was under arrest and in jail.


The Claimant stated during the investigation that he had been in contact with a bail bondsman while he was in jail, and he maintained that the bondsman could have obtained his release from jail at any time if he had simply advised the bondsman to post his bail. However, according to the Claimant, he had deliberately remained in jail because he believed he had been unjustly arrested. The Claimant maintained that he was tinder stress during both of his calls to the Carrier because both he and his wife were incarcerated at the time, and he was concerned about the welfare of his children. 't-"he Claimant insisted therefore, that he was entitled to the FMLA leave.


General Code of Operating Rules, Rule 2.6 prohibits employees from engaging in various forms of personal misconduct as follows:

















The Organization argued vigorously and skillfully that, prior to his arrest and incarceration, the Claimant was suffering from undue stress. The Organization also argued that he had been granted FMLA protection for exactly this reason: mental duress and stressors that might prevent him from working effectively. Therefore, in the Organization's view, the Claimant had not been dishonest or deceitful.


In PL B 564?, Award 2, the board examined a similar case of a railway worker who requested and was granted a leave of absence to take care of a number of purported problems in his personnel life. That worker was later terminated when it was discovered that he was actually in jail during the period of his leave. In denying the claim, the Board had this to say concerning dishonesty:



PLB 7292
 Case o. 19
 Award o. 19

 '.Numerous tribunals have held that incarceration is not a valid reason for failing to protect an assignment, nor is it a valid reason to grant a leave of absence. The awards do reveal that failing to tell the Carrier of incarceration is dishonest. In Third Division Award Rio. 18562 it was held:

The record amply supports the charge that Mr. Staples made a false statement to be absent from duty as charged by the Carrier. Mr. Staples stated that he told his father to mark him off sick. He alleges that he was both sick and in jail, However, the withholding of essential information may also constitute the making of a false statement. In the instant case Mr. Staples had an affirmative duty to inform the Carrier of the entire reason for his absence to wit, the fact that he was in jail.


Similarly,

 Award 303 the board held:

    Here, the record reveals that the Claimant's incarceration prompted his call to the Carrier's Crew Management to extend his layoff on grounds of sickness when, in fact, he was not sick. The Board agrees with the Carrier that the real reason for the extension ha requested was linked to his uncertainty whether he would be released from jail in time to protect his assignment. This is not a valid reason for extending his layoff unless he informed Crew Management, which he did not, of his incarceration. Suffice it to say that it is dishonest to provide false, misleading or incomplete information to obtain permission to be absent. By seeking an extension of his layoff on false grounds, the claimant specifically breached, among the other rules cited herein, Operating Rule l .((4).


This Board has carefully reviewed each of the above cited Awards and finds that they, have direct application in the instant case. Even though the Claimant in the instant case may have been under stress at the time he called in to report his intended absences, he still had a duty to infirm the Carrier that he was incarcerated. However, he deliberately


the fact that he was incarcerated, and he made no attempt to reveal his

 incarceration to the Carrier when he returned to work.

 While it is regrettable that the Claimant air be encountering difficulties in his personal

 life] the Carrier has established that the

 1·MLA for his absences on May 6 and

 Claimant violated Rule 1.6(4) when he claimed

 when, in fact, he vas incarcerated,
 PL.$ 7292
 Case No. 19
 Award No. 19

 1ZATItJN'S ASSERTIONS
Hearirry, Was Not Fair and/or Impartial

The Organization argued that the Claimant was not afforded a fair and impartial hearing because Transportation Process Specialist, Dennis L. Mead served as the Hearing Officer and ultimately assessed the discipline upon the Claimant. The Organization maintained that the combination of Mr. Mead's rules in the process seriously compromised the Claimant's due process rights to such a point that it cannot be overcome.


As this Hoard has previously stated, an employee has

role during the disciplinary process. In National Railroad Adjustment Hoard Third Division Award 639, the board examined a similar argument advanced by the Association and ruled.


    while duality of roles is neither condoned nor encouraged, the key is to deterrcxine whether demonstrable prejudice to the employee exists by virtue of multiple rules of the Officer.


And in National Railroad Adjustment Board Second Division Award 13692, the board had this to say concerning the subject of multiple roles of the fearing Officer:


    used can a careful examination of the record, the Board finds that no demonstrable prejudice has been shown. The Claimant's rights were not adversely affected. On the contrary, the Hearing officer heard the testimony and observed the witnesses and was in the best position to resolve the factual issues that were presented in the instant case. `thus, the fact that the determination of ~uiit and the assessment of a penalty were both rendered by the Officer who conducted the Hearing did not deprive the Claimant of a fair Hearing.


The record in the instant case clearly established that the Claimant's due process rights were protected throughout the process. Mr. Mead provided him and the Organization a foil opportunity to explain his version of the facts, and both the Claimant and his representative m=ere each permitted to vigorously cross-examine the Carrier's witnesses


opportunity to introduce evidence or witness testimony in support of his defense
 PLB 7292
 Case No. 19
 Award No. 19

    After a careful review of the record, there is no evidence to support a finding that Mr.


was biased during the process or that he neglected to consider all of the evidence

before reaching his decision, In fact, Mr. Mead demonstrated his neutrality by granting the Claimant's request for a lengthy recess of several weeks during the investigation to allow the Claimant additional time to secure farther information from the court in support


no evidence that any provision of Article 24 or any ether portion of

the Collective Bargaining Agreement prohibits a single member of management from performing mare than one rate during the disciplinary process. Accordingly, this Board concludes that the Claimant ores not deprived of a fair and impartial hearing.


Tie Hearing Vas Conducted in an Adversarial Manner

The Organization also argued that "I°ranpartatian Specialist Mead, while serving as the Carrier's Conducting Officer at the investigation, chase to act in a prosecutorial fashion


the charges against the Claimant. The Organization maintained

 Mead had therefore, conducted the hearing as an adversary proceeding, rather

 than allowing the facts to he developed.

The rate of the hearing officer is to conduct the investigative hearing is such a way that the facts of the case are fully developed and retarded. A review of the investigation transcript reveals that Mr. Mr. Mead conducted the investigation objectively and asked relevant questions of the witnesses in order to establish a complete record. Further, although Mr, Mead properly retained control of the investigation and required the Claimant to restrict his questioning of the witnesses to matters relevant to the investigation, there is no evidentiary showing that he suppressed any relevant evidence or


mitigating circumstances that could have proved the

 charged offense, or that the penalty should

 The harrier Violated Article 24(b).
was net

Next, the Organization argued that flee initial complaint letter was net issued to the Claimant within the requisite five-day tune limit as specified in Article 24(b) of the Agreement, outlined in pertinent part as follows:

PLF3 7292
 Case No. 19
 Award No. 19

A train dispatcher who is charged with an offense which, if proven, might result in his being disciplined, shall be notified in writing of the nature of the complaint against hint within five (5) days from the date that the knowledge of the facts on which such complaint is based was received by the Superintendent, and he shall be given a fair and impartial investigation by the Superintendent or a designated representative within rive (5) days of the date of such notice, . . . . (Emphasis added)


The Organization correctly pointed out that although the

 FMLA while incarcerated on

 £i and 7, 2008, the Carrier did not

 against him. until July 15, 2008. The Organization asserted that the Claimant had overheard other employees discussing his incarceration in the workplace as early as midJune 2008 anti argued that management must, therefore, have peen aware of the situation

 the notice of investigation was issued. For that reason, the organization

 insisted that the notice of investigation was untimely.

 While the ()rganization's assertion is serious and worthy of consideration, the evidence established that the Superintendant did not actually become aware of the Claimant°s 'MLA lay off while incarcerated until he was presented with evidence of" that fact on July 11, 2008. Therefore, the evidence clearly shows that the Notice of Investigation

 dated July 1 5, 2008, was issued within the requisite 5-day Superintendant became aware of the Claimant"s misconduct.

 The harrier Had Not Challenged
Next, the Organization

 the Organization during the handling of this dispute arid that the Claim should, therefore,

 he sustained. Fn

 hoard decisions, including National Railroad Board Third Division Award 28459

involving disputed work performed by an outside janitorial service. In denying those claims, the board held:


    With respect to the three separate Claims, we note that the wording of the individual Claims and the following correspondence is the same for each. The Carrier, in its identically worded denial letters, substantially gave its reasons for rejecting the Maims. There is nothing in the record properly before us that refutes these material statements and assertions. It has been consistently held by the hoard that when material statements are made by one party and not denied by the other party, so that the allegations stand unrebutted, the material statements are accepted as established fact. Can that basis, eve must deny these Claims.

PLB 7292
 Case No- 19
 Award No. 19

 It is clear from Award 2$459 that the organization in that case had claimed the carrier violated the collective bargaining agreement when it subcontracted janitorial work to an outside contractor. In that Award, the board pointed out that the carrier had adequately explained its reasons for subcontracting the subject work, and the organization had not rebutted those reasons. Can that basis, the claims were denied.

 National Railroad Adjustment Board Third Division Award N=o. 36516 examined a similar issue and had this to say regarding unrebtted material statements:

    In this case, the Organization's assertion that the work had routinely been assigned to Carrier forces, and at the time of contracting out, was assigned at other locations to Carrier forces, vas never refuted by the Carrier. 'rhe board has often held that material assertions made by one party in the presentation and progression of a dispute that are not refuted or rebutted by the other party during the on-property handling of the dispute must be considered as being correct. That being the case here, we conclude that the Carrier violated Article IV of the National Agreement by failing to give the General Chairman advance written notice of its intent to contract out the work at issue.


As the hoard made clear in the above cited Award, by presenting material statements, the

 organization established a prima facie case that the

 assigned to carrier workers and

 work had routinely been

 to carrier workers at other locations at

the same time the carrier was contracting out the disputed work. The carrier in that case did not dispute the organization's material statements, and the board accepted those statements as established facts.


In the instant case, however, the Carrier's reasons for denying the Organization's claim

 had been thoroughly addressed in a lengthy 1(?-page letter dated April 16,

 General Director Rules and Field Support, D. E. Bodeman to A'I`DA dice General

Chairman R. B. Aldridge. In his letter, Mr. Bodeman disputed the Organization's assertions and arguments made on the Claimant's behalf. Subsequently, in a letter dated


July 15, 2009, General Director Labor Relations, 0. D. 'wick reiterated to Mr.

that Mr. Bodeman's previous letter had addressed the salient points of the Organization's argument in this case, and he also denied the claim.


Notwithstanding the Organization's diligent and spirited arguments on the Claimant's

behalf this Board finds that when Mr. Wick submitted his July I S letter to fir. Aldridge,

the Carrier had clearly responded to all of the Organization's positions and had set out its

final position to the Organization, at which firm the case was fully developed and ready

for submission to arbitration for final resolution. In view of the above, in the absence of


9
 P LB 7292
 Case No. 19
 Award No. 19

    any evidence that a specific material statement had teen made by the Organization that


been denied by the Carrier, the Organization's claim must be denied.

 Pay Fur Attendance at the DiscipiinaHearin

In its submission, the Organization requested a remedy that would make the Claimant "whole for any and all lost time, including wages for ail time lost as a result of attendance at the disciplinary hearing". (Emphasis added) However, Article 24 only provides for the repayment of lost wages, minus interim earnings, if the dispatcher is cleared of the charges, and it makes no prevision for pay to a Claimant white attending an investigation. Public Law Board 619, Award 4, examined this same argument and had


    The Beard must find that the only Article specifically written and applicable to the facts, is Article 24 pertaining to Discipline and denoting the previsions relevant to an investigation. There is no language in Article 24 providing fn r compensation for attendance at an investigation.- (Emphasis added) The Carrier pointed out an property that there was no past practice. The facts indicate float the Claimant was charged and found guilty as a result of that investigation. Whatever the consequence of being censured and in addition, losing a clay's wages, the parties have no language which provides compensation herein, and Articles I $ and 20 do not apply. Accordingly, the Board must deny the claim.


In view at the above, and in the absence of a demonstrated past practice to the contrary, this Board must find that the Organization's request to have the Claimant compensated for time spent while attending the investigation constitutes a remedy that is net provided for in the Collective Bargaining Agreement.


CONCLUSION

In assessing discipline to the. Claimant, the Carrier considered the Claimant's retard which reflects an appalling disciplinary history. During his employment, the Claimant had been assessed 21 disciplinary actions for various rules infractions, and five


disciplinary actions for acts of failing to cover his assignment. Therefore, it

the Carrier has taken a measured approach and applied progressive discipline by which the Claimant knew, or should have known, that his jab vas in serious jeopardy,


tie nccrneraus warnings he received, however, the Claimant continued

 an his path of misconduct and permanently damaged his employment relationship with
 PLB "7292
 Case No. 19
 Award No. 19

 The precedent has been established in this industry that all employees are prohibited from engaging in dishonesty in their dealings with the Carrier, the Carrier's customers and other Carrier employees. The Claimant was dishonest when he laid off for FMLA on May 6 and 7, 20013$ while he was incarcerated and, in so doing, he violated Rule 1.6(4). Therefore, this Board finds that dismissal was appropriate in this case.

 AWARD

 The claim is

 in its entirety.

Paul Chapdelaine

Chairman and Neutral Member

May ', 2011


IPaul -Ayers 1'
 Employee Member