PUBLIC LAW BOARD NO. 3836
BROTHERHOOD OF MAINTENANCE
7F WAY EMPLOYEES
-and-
SOUTHERN PACIFIC TRANSPORTATION
COMPANY (WESTERN LINE)
CASE NO. 6: Appeal of F.J. Briones, SSA #573-84-4107 from
discipline by assessment of sixty (60) demerits
for violation of Rule M532 - "Foreman must keep
the records and make the prescribed reports of
the time of their men."
BACKGROUND:'
On September 20, 1985 District Manager Jerry H. Smith'observed
two laborers assigned to Extra Gang 66 leaving SOPTC's property at
2:30 P.M., one (1) hour prior to the scheduled quitting time of this
Gang.
Upon making inquiry to the Appellant (then the Foreman of this
Gang), Smith was informed that these employees had been granted permission to quit early for personal reasons.
Smith noted the early departures and; when checking the Appellant's time record for the payroll period involved, discovered that
the Appellanz `gad entered eight (8) hours for each of these employees on September 20, 1985, the da:e of their early quit.
The Appellant, F.J. Briones, was subsequently charged with
"alleged improper reportings of time worked on Form CS 2n1-E 4herein
you indicated that employees J.M. Lee III ·.nd D.R. O'Neil worked
eight straight time hours Friday, September 20, 1985 when in actual-
PLB-3836
J
2 - Award No. fi -
ity they had only worked seven hours.,"
A
"Hearing" was conducted by D.P. CapQvilla, Manager, MW Training, on November 6, 1985.
DISCUSSION: --
Briones testified on his own behalf. He did not deny that he had
not received Smith's authority to pay employees for time not worked,
specifically he was not authorized to do so on Friday, September 20,
1985. Nevertheless, he considered it equitable to do so, because
these employees had, on various occasions, worked through their, assigned lunch periods in order to maintain production.
Tie related that "Jim Lee asked if he could be off a little early
because he had to go see his parole officer or doctor." Briones told
him, "we are not running the tamper, it broke down, were done with
the job, there is no reason I can't let you go early because of the
lunches that you guys worked through to get production."
Briones acknowledged that he did not inform Smith that his Gang
had on occasions worked through their lunch periods, "No, I didn't
let him know because half the time I can't get ahold of him, many
times. I talked to him in the morning, half the time he don't give
me the chance to explain."
District Manager Smith and his Clerk, M. Harden, appeared for
SOPTC. In summary they testified that; Briones had never sought or
was granted permission to allow employees time not worked with par -
(early quit`, as a form o° compensation for having worked _hrough
PLB-3836 - 3 - Award No. 6
their lunch periods.
Harden testified (TR 12) that; there had been previous problems
with Briones properly performing his ministerial responsibilities,
i.e. "problems with his 203's and 488's, some problems with his time
rolls." "As far as actually showing the time,
I
am not aware of any
problems..., but information about the men and different things like
that, Social Security Numbers, employee account numbers, yes, we had
problems." Harden questioned Briones' ability to do his "so-called
paper work." "I felt he had a definite lack of understanding where
Labor Reports 203, 488 were concerned. I felt that he didn't know
exactly how to make his reportings and didn't understand the proper
GMO's, etc., how to show time."
OPINION AND FINDING:
Clearly Briones was wrong in assuming he had authority to breach
a provision of the parties' collectively bargained agreement, specifically Rule 21 (pg. 18), "If employees are required to work during
the designated meal period, said meal period shall be paid for at the
applicable rate of pay and 20 minutes in which to eat shall be
afforded at the first opportunity."
On the other hand, SOPTC has not shown that Briones had any intention to manipulate the payroll or to defraud SOPTC by being a
party to any scheme involving the theft of "time."
Further, Smith, when asked whether, after.finding the discrepancy in Briones' Time Report, he confronted Briones concerning his
possible error, he replied "I did not." Neither did Smith remit a
corrected 201-E correcting Briones' r-port, which he knew to be in- -
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correct.
Finally Smith was asked: "After you found the discrepancy on
the time roll for September 20th, and there was no corrected time
roll submitted, were the people in question compensated for the time
as shown on the time roll?" Smith's reply: "Yes, they were, to the
best of my knowledge." (TR 9) (Arbitrator's underlining).
Clearly, Smith had the opportunity (the obligation) to rectify
this situation as soon as he became aware of it and, not permit the
incorrect reporting of time to result in an improper payment to the
employees involved.
Perhaps Briones is not supervisory material; if not there are
methods available to handle that situation.
However, Briones does not have a poor record as an employee. He
has broken service commencing in
1974,
he has been continuously in
service since
1976,
without any formal disciplinary action having
been taken against him.
Based on the record the requirements of Rule 45 were met by
SOPTC, Capovilla did accord Briones a "Fair and Impartial Hearing."
Finallv, based upon Briones admitted violation of the applicable
Rules and Regulations there was a basis for the imposition if some
discinl1ne. However, the assessment of sixty
(60)
demerits, based
upon this record, two-thirds of the number of demerits that would
place Briones in jeopardy of dismissal, is "Excessive" within the
meaning and intent of the parties' collectively bargained agreement.
PLB-3836 - 5 - Award No. 6
AWARD: -
The sixty (60) demerits assessed against the Disciplinary Record
of the Appellant, F.J. Briones, SSA #573-84-4107, shall be expunged
therefrom.
Briones' Disciplinary Record shall be corrected, in the manner
and to the extent necessary, to show that Briones has been reprimacided
for improper reporting on Form CS 201-E, September 20, 1985.
John . Gaherin
Cha' an b Neutral Member
·/F6