RTHLIC LAW HARD H10. 2205
AWARD 11D. II
CASE 110. 32
PARTIES 1o THE DISSPUTEs
Brotherhood of Maintenance of Way Hmplorees
and
Barlington Northern, Imo.
STATEMENT OF OL11Ms
"Claim of the System Goawittee of the Brotherhood thats
"(1) The dismissal of Machine Operator R. D. Lay, March 22, 1978,
was without just and sufficient cause and wholly disproportionate to the alleged offsose. (u`~, stem File 33-R-3 NW-20
5/11"7$ ).
"(2) Machine Operator
R. D. Lay be
reinstated with all seniority
and other rights unimpaired and be compensated for all time lost."
OPI117DN Oh HOARDS
This case involves the dismissal of Machine Operator Roger Lay following hearings asst investigations on March 8, 1978, into two separate but related
charges of misconduct. Claimtat, a four-year
employee
of Carrier, is charged
with use of alcoholic beverages wile on duty
on
February 27, 1978, and also
with claiming pay for time not worked on February 27 and February 28, 1978.
Following
agreed-upon extensions of tine, two separate investigations were held
on March 8, 1978. Carrier found Claimant guilty of both charges and on those
grouada terminated his employment. After reviewing the record we find no support
for the Organization's assertions that Claimant received leas than the fair and
impartial investigation to which he vas entitled under Rule lal.
Turning to the merits, we have reviewed all of the record evidence,
i
ineludlng direct teatimon$al conflict between Claimant and the Trainmaster who
was Carrier's chief eyewitness regarding the alleged Rule G violation. 'e are
parsuaded that the Trairmaster did see Claimant taking a drink from nn open bottie
of beer on tt:e bar at tiavenerss country Tavern on February 27, 197b. This occurred
while -aiAnnt and two other Carrier aVloyees vssre playing pool in the bar du.-ing
their 'lunch break. There were tlsree open cold bottles of beer on the bar but
only Claimant was observed drinking frets one of them. When confronted, Claimant
told the Trairnnaster in the presence of the Mechanic Foreman, "Itts your word
against nine." After analyzing the conflicting testimony. of the two chief witneesea and their respective corroborating witnesses, with respect to specificity,
consistency and motive for prevarication, we are persuaded that Carrier did not
err in finding the Traizmasterls evidence believable. Carrier has demonstrated
by substantial and probative evidence on this record that Claimant did drink none
beer on the lunch hour on February 27, 1978.
The second charge, upon which Carrier also relied in dismiFsing Claimant, stands on less firm footing. The record establishes that Carrier requires
employees
in outlying
pointas, lice Claimant in tl?ais case, to forward their time
rolls several dolys in advance of the close of Uc per period. i1sE: time records
at issue herein for the days February 27 and February 28, 19715, had to be received in Carrier's Metrict Accounting Office by 10 a.m. on :d®rch 1, 197::. In
accordance with those instructions and by established practice, Claimant and
other aployses at Wbat Alt= were required to estimate in advance the tire they
would work on February 27 and February 28,,1978. For the two days: in question
Claimant estimated that he would work eight hours each day, signed the pay records
send forwarded them to the Accounting Department on ·ebruary 27, 1978, prior to
going to work that morning. Later that day the beer-drinking incident described
above occurryd, and at 2sjO p.m. Claimant was taken out of service, given a :btice
' ~~-or - /jt
.~ ll
of Investigation regarding iWle G violation, end ordered to stay off Burlington
Northerr property by the Tralnmaster. Three days later Claimant was served with
another tbtice of Investigation reading as followss
":'lease arrange to attend investigation ....for the purpose of
ascertaining the facts and determining your responAbillttv in
connection with your allegedly claiming pay fbr Februaza 27 and
February 28, 1978, when you did not perform compensated service
while assigned as Machine Operator, West Alton, Missouri.."
After reviewing the transcript and documentary evidence on
the payroll
:'alaifieatinn charge, we are convinced that it cannot stand. The practice of
advance estimates is firmly establi'hed
and
condoned it not required by Carrier.
Under ordinary circumstances an employee should amend his time record after the
fact if the estimated brae
turns out
to be incorrect. Hut th:^_ err. h^--dly be
considered an ordinary circumstance. Claimant was removed from rervice, ordered
off the property and charged with a serious rule violation on the afternoon of
February
27, 1978. His failure or forgetfulness to amend his previously habpitted time card immediately is understandable in the face of that traumatic experience. The rush to ,judgment of superasion in charms him with payroll
falsification in those circumstances was inappropriate, unsupported by evidence
and
smac'rs of an un"eeray haste to buttress the charge already pendir4- agsiast
him. ^.'h-: finding of guilt on the payroll falsification charge is unwarranted and
arbitrary and it murt be set aside. See Awards 3-13306,
3-1U79,
3-16166, and
3-17?^8.
Carrier rremi^ed Clainantln dismissal on findings of guilt on
both
char(,ce but he war not guilty of bcih charges. The Foals i violation acs a serious
matter
and
scrioue disciplin"
if!
warranted, Mxt dismissal from serec~ ia, in the
circsu:rtr=cr.s,
e=eseively harsh. See Awards 3-1$016, 3-19037, and 3-1959. we
shaiL reduce
the
penalty to a
suspension and
return Claimant to ervricc but
without bas': prey
for
the ti--,e lost.
FINDIIMs
Public Law Board tie. 2206' upon the whole record and all of the
evidence, find- and holds as follows:
1. That tk:e Carrier and iriployee involved in this dispute girt-,-,
respectively, Carrier sad nsployee within the aseening of the Runway Labor Act;
?. that the Board has S:risdiction over the dispute involved herein
and
3. that the penalty of dismissal was excessive.
AS;AFD
Claim oustaUed to the extent indicated !n the Opinion.
Carrier i.^ to comply with this Award within thirty daye
of its:
issuance.
L~saa £. Eisohen ®n
l
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t
°. : `lm:., `hployee Member L. Carrier Member
rr
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