ACTO 86-06-16
PUBLIC LAW BOARD NO. 4121
CASE N0. 20
AWARD N0. 20
PARTIES UNITED TRANSPORTATION UNION (FORMER GN)
TO and
DISPUTE: BURLINGTON NORTHERN RAILROAD COMPANY
STATEMENT Claim of Seattle Switchperson Joyce R. Dempsey for
OF reinstatement to service with seniority rights and
CLAIM: vacation privileges unimpaired, with payment for all
time lost since withheld from service March 7, 1986,
and subsequent unjust and unwarranted dismissal from
service, March 24,
FINDINGS: On March 6, 1986, Claimant was assigned from the extra list
to fill a yard helper position on Switch Job No. 367,
11:30 p.m., at Seattle. The caboose assigned to Job 367 was an
Track 15; when the crew tied their engine onto the caboose, Claimant put
her personal bag, or
"gripe,
onto the caboose. The crew, working
shorthanded, switched five cars and the caboose into Track 19, then took
their engine to the lead in front of the yard office to wait for the
third man to join the crew. Meanwhile, at about 1:00 a.m., a railroad
policeman searching the caboose far possible trespassers, found
Claimant's bag and opened it in order to identify its owner; inside
Claimant's purse, inside the bag, he found a film canister in which were
several marijuana roaches, the butts of marijuana cigarettes. He found
Claimant's name an a sales slip in the bag and removed the bag from the
caboose intending to inform his supervisor of what he had found.
p5aj12787a3 1
PLB No. 4121
Award No. 20
While Claimant and her foreman were waiting for the third man, they
were instructed by the yardmaster to go have coffee. Claimant decided
to get her bag first and while enroute to do so met the policeman
carrying it. She identified it as hers and the policeman gave it to
her, saying nothing about the marijuana. He reported the matter to his
supervisor and they contacted the trainmaster. The trainmaster then
told Claimant that the policeman had found marijuana in her bag, and
requested that she accompany him to his office and bring the bag. At
the office, in the presence of the trainmaster, the policeman and his
supervisor, she was requested to open the bag and remove the contents,
specifically the canister, and she agreed to do so. Both at that time
and in her testimony at the investigation, Claimant denied that the
canister or roaches were hers and disclaimed any knowledge of how they
got into her purse. The trainmaster asked her to agree to a urinalysis
and she did so. The urinalysis showed negative for all drugs.
According to the trainmaster and the policeman, the Trainmaster asked
Claimant at the.time whether she used marijuana and she replied, "Yes,
sometimes"; when questioned at the investigation, Claimant denied making
that statement. Claimant had her bag in her
possession for about an
hour between the time
it
was given to her by the policeman and the time
the trainmaster asked her to bring it to his office.
After the investigation, which brought about the above-related
facts, Claimant was dismissed for violation of Rule G - possession
of
illegal controlled substances on Company property.
2
PLB No. 4121
Award No. 20
The issue is whether there is sufficient evidence to support the
conclusion that the canister and its contents were brought on the
property by Claimant. Carrier argues that in the absence of evidence to
show that any other person had a "vendetta" against Claimant or other
motivation to plant the canister in her purse, the only logical
deduction that can be made is that the canister did in fact belong to
Claimant. The Organization contends that there must be a clear and
convincing evidence to show that the canister belonged to Claimant and
that the evidence advanced by Carrier failed to meet that test. The bag
was unattended and unlocked and thus the opportunity existed for a third
person unknown to plant the marijuana. Claimant denied that the
canister was hers or any knowledge of how it got into her purse. Her
conduct in freely opening her bag and purse upon request, and in not
disposing of the canister during the approximately one hour that she had
it in her possession after it was given to her by the policeman, is
consistent with her testimony. The testimony on the whole leaves
considerable doubt as to whether the canister was in fact Claimant's,
and in an offense involving moral turpitude, Claimant is entitled to the
benefit of the doubt.
We must agree with the Organization in this situation. It is
generally held, and has been held specifically on this property (in a
case quite similar to this one (PLB 3007, Award 2)), that the standard
of proof in a so-called moral turpitude discharge is greater than the
"substantial evidence" or "preponderance of the evidence" standard more
3
PLB No. 4121
Award No. 20
usually applied. In the absence of evidence that we consider to be
clear and convincing that Claimant knowingly had possession of the
illegal substance on Company property, we hold that the violation of
Rule fi was not proved and that the claim for reinstatement and pay for
time lost, not including vacation, and subject to the usual practice on
the property with respect to deductions for outside earnings must be
sustained.
Award: Claim sustained as per Findings.
'day ncT
uster, Neutral`M`em~"'er
inn, Carrier MemSer
Date: August ,~ , 1987
4
M.
-'NI?Winter,~Employee '
PLB No. 4121
Award No. 20
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Cases 1, 27, 20, 33
Awards :., 18, 10, 29
INT=FnZTATIOr:
In Awards 1 and 20, issued August 3, 1987, and Awards 18
and 29, issued May 21, 1985, the Board ordered that employees be
reinstated and paid for time lost. In Award No. 20, the actual
language used was "claim sustained for reinstatement and all
time lost in excess of thirty days." The other three awards
provided for pay for all.time lost "subject to the usual practice
on the property with respect to deductions for outside earnings."
In none of the cases did
the parties present any argument to the
Board on the issue of whether or not
it was the usual practice on
the
property to deduct outside earnings, although in some or all
of its written submissions, Carrier proposed that outside
earnings be deducted and cited Awards 3, 3 and 4 of Public Lam
Board No. 3007, issued June 14, 1983, which reinstated employees
and ordered pay for time lost less the "usual and customary
deductions for outside earnings, etc. on this property" (Award
No.2) or less the "usual
and customary offsets"
(Award No. 3) or
less-the "usual and customary set-offer" 'knward No. 4? on the
property. This Neutral, at the time he prepared the proposed
awards herein
involved, was not aware that
there ways an existing
dispute between the parties; rather, he assumed because of the
many years of contractual relationship between the parties, and
also because of- the language of the awards of PLB 3007 that there
was agreement between the parties as to a "usual and customary
practice" of deductions or offsets of outside earnings, and he
therefore adopted the language used in the awards of the
predecessor Board. (The Neutral was not aware at the time that
the Organization had filed
special concurrences to the three
awards of PLB 3007 pointing out that the question of deductions
or offsets of
outside earnings had not been
argued before the
Board in those cases and asserting
that
that there was no custom
or practice on the property for such deductions or offsets.? in
any case,
the Board did not
intend to and did not
in fact rule on
the issue of deduction of outside earnings in any of those four
awards.
-14*~s 1
Ig~
PLB No. 4121
Award No. 20
When Carrier, in purportedly complying with
the back pap.
orders in Awards 1, 18, 20 and 29 of this Board, sought to deduct
outside earnings, the organization objected; the parties
eventually requested that the Board schedule a hearing on the
disputed issue and such a hearing was held on June 23, 1.988, at
which, for the first time, the issue was fully argued to the
Boar:. At this hearing, the organization submitted a written
brief and the Carrier ressbmitted the relevant material in its
original submissions in the cases. Following the hearing, both
parties submitted additional written materials.
It is clearly established by many awards that where, as
here, the schedule rules provide simply that wrongfully
discharged employees will be reimbursed for any loss of
compensation, without mention of deduction of outside earnings,
the intention of the parties in that regard must be determined by
reference to the actual practice of the parties in applying the
rule. In this case, it is not disputed by
the Carrier that from
the inception of the rules in the early 19002 until the issuance
in 1983 of Awards
a,
3 and 4 of PLB 3007, employees ordered
reinstated with pay for time lost were paid for actual time lost
without deduction of outside earnings. Indeed, in 19677, Carrier
unsuccesfully served a Section 6 notice on the organization
seeking to amend the rules to provide specifically for such
deductions.
Carrier argues
th-t the practice chan_ed in
1983 with the
issuance of the PLB 3C07 awards, asserting that
in the
computation of the soz%~ ;.1:0,000.00 back pay due to the employee
reinstated by Award No.3 of PLB 3007, $3,057.29 of outside'
earnings was deducted. Carrier also cites Awards 18, 20 and 29 of
this Board as authority s4Yporting the deduction of outside
earnings.
The Organizati-~,:. ~:r_.,.~.:~ t;at the c~u~a;..~..o:. of outside
earnings was not arguac bafore PLB 30D7, t:at
it made that point
in its special concuzrenzs, that there was no reference to the
$1, 05.7. 29 deduction ::z. :. t.s correspondence with Carrier relative
to the computation of back pay due the emplyee reinstated by
Award No. 2 of PLB 3007 and that .;.t did not agree to such
ded4ction. Further, that ::n a :.ester case, Award No. 7 of PLB
3436, issued in 1986,
n4
deduction from full back pay was made
although the reinstated employee had outside earnings during the
period of his dismissal.
Y
PLB No. 4121
Award No. 20
There is no indication .:n
Awards 2, 3 and
4
of PLB 3007
that the question of outside earnings was presented to,
considered or decided by that Board as a disputed issue. The use
of the language "usual and customary" with respect to the
deduction of outside earnings in those awards, just as in Awards
18, 20 and 29 of this Board, is a reference to whatever the
actual past practice was, not the establishment of some
different practice. It is clear that the actual past practice
prior to the issuance of the PLB 3007 awards was not to deduct
outside earnings; that is not disputed by Carrier. The evidence
submitted by Carrier to the Board as to the deduction of the
outside earnings in the computation of back pay due the
reinstated employee in Award 2 of PL8 300? consists of internal
communications between Carrier officials; reference to that
deduction does not appear in the correspondence between Carrier
and the Organization submitted to the Board by the Organization,
and thus cannot be said to have been acquiesced in by the
organization. Under these circumstances, the deduction in that
one instance
cannot be said to have changed the consistent, longstanding practice of the Carrier and Organization over many years
of interpreting the. applicable rules to mean that outside
earnings are
not to be deducted in the
computation due to
wrongfully discharged employees reinstated
with pay for time
lost.
we therefore rule that
there shall. be no deduction of
butside earnings in the computation of the pay for time lost
awarded to employees in .wards 1., 18, 20 and 29 of PLB 4121.
,_
: . c. 1·'1~i~r
'I 1
FI. _ Raymond ::~ster -
Chairman an;_ Neutral Member
Baltimore, Maryland
:anuary y0, 2989
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