Public Law Board No. 4161
Parties to Dispute
Brotherhood of Maintenance of )
Way Employees ) Case No. 44
vs ) Award No. 38
Burlington Northern Railroad )
STATEMENT OF CLAIM
1. The discipline imposed upon former B&B Foreman
L. Covarrubias for alleged violation of Rules
564 and 575 was without just and sufficient cause,
excessive and unreasonable.
2. The Claimant's record shall be cleared of the
charges levelled against him and he shall be compensated for all wage loss suffered in accordance
with the provisions of Rule 40(G).
FINDINGS
At the time of the incidents leading to this case the Claimant
was employed as a subdepartment foreman in the Bridge and Building
Department of the Carrier. He was assigned to Mobile Crew 595415 which was working the East Rocky Mountain Seniority District.
Because the Claimant was often required to live away from home
while on assignment during the week, he was entitled to reimbursement
of expenses under Rule 36 of the Agreement. This Rules states, in
pertinent part, that reimbursement will be made for "...cost of
meals and logding incurred while away from ...outfit() or regular
headquarters by direction of the Company, whether off or on...
assigned territory". Reimbursement requests are made by submission
-zPublic Law Board 4161 (Award 38; Case 44)
of monthly expense account form(s), duly signed by employee submitting them, with statement to the effect that what is contained
therein is a "true statement". When the Claimant submitted the
expense account form for September of 1984 the B&B Supervisor noted
an irregularity because receipts supporting two nights' motel
expense which the Claimant had claimed were absent. The form was
returned to the Claimant with request to furnish evidence.
Approximately a month later the Claimant resubmitted the forms for
September, and also the forms for October of that year. After
reviewing both of the expense account forms and attached materials
the Foreman noted that the receipts did not appear to be valid ones
with respect to alleged stays on certain days at motels. Additional
investigation on the part of the Carrier's Police and Special Services'
Department revealed that the receipts were forgeries.
The Claimant was cited for falsification of documents attached
to expense account forms separatedly for the months of September
and October of 1984 and two investigations were held. After the
investigations the Claimant was found guilty as charged and he was
dismissed from service.
The instant case contains a volumunious file which includes
the record of the two investigations and extensive correspondence
developed by the Local Chairman, particularly, wherein it is
alleged that the Carrier was subject to various procedural defect
while handling this case. The Board has closely studied the record
and is unable to conclude that the Carrier was in procedural default.
The Claimant was returned to service on leniency basis with
probationary status approximatley one year after discharge and the
matter before this Board, on merits, deals with relief and back
pay for the time he was out of service.
-3-
Public Law Board No. 4161 (Award 38; Case 44)
A review of the transcripts of the two investigations as well
as the record as a whole warrants the conclusion, corraborated by
testimony by the Claimant himself, that the receipts attached to
the September and October, 1984 monthly expense accounts were not
all valid. On basis of substantial evidence, therefore, the Board
must reasonably conclude that the Claimant was in violation of the
two Rules at bar which state the following:
Rule 564
Employees will not be retained in the service who are
careless of the safety of themselves or others, disloyal,
insubordinate, dishonest ....or who conduct themselves in
such a manner that the railroad will be subjected to
criticism and loss of good will.
Rule 575
Theft or vandalism shall be considered sufficient cause for
dismissal from railroad service ....
Numerous arbitral forums in this industry have concluded that
defrauding a Harrier is a serious violation and is grounds from
dismissal (Third Division 13130; Public Law Board 4161 Award 1 &
37 inter alia). On basis of the record as a whole this Board
cannot reasonably diverge from this precedent in the instant case
and the claim must be denied.
AWH2tu
The claim is denied.
/Edward L. Suntrup, Neutral Member
' Ma `'ne Timb an Carrier Member
B ce G1 er, Employee Member
Date: