PUBLIC LAW BOARD NO. 4244
Award No. 233
Case No. 240
Carrier File No. MWE980928AB
Organization File No. 190-13D2-989.CLM
( BROTHERHOOD OF MAINTENANCE
( OF WAY EMPLOYES
Parties to Dispute: ( -and
(
(
(
( BURLINGTON NORTHERN SANTA FE RAILWAY
(
Statement of Claim: 1. The Carrier violated the Agreement when on August 31,
1998, the Carrier dismissed Mr. R. G. Gameros and F. J.
Alanis for [an] allegedly [sic] violation of Rule 1.6,
Conduct, of the Maintenance of Way Operating Rules,
effective August 1, 1996; in connection with their alleged
falsification of weekend travel allowance mileage claimed
for travel between Hereford, Texas and Fresno,
California while working on System Tie Gang TP-13 for
the weekend of August 7 and 8, 1998.
2. As a consequence of the Carrier's violation referred to
above, claimants shall be reinstated to their former
positions with seniority restored, they shall be paid for all
wages lost and discipline shall be removed from their
record.
Public Law Board No. 4244
Award No. 233
Case No. 240
Carrier File No. MWE980928AB
Organization File No. 190-13D2-9.CLM
This Board is duly constituted by agreement of the parties dated January 21, 1987, as
amended, and as further provided in Section 3, Second of the Railway Labor Act ("Act"), 45
U.S.C. Section 153, Second. This matter came on for consideration before the Board pursuant
to the expedited procedure for submission of disputes between the parties. The Board, after
hearing and upon review of the entire record, finds that the parties involved in this dispute are
a Carrier and employee representative ("Organization") within the meaning of the Act, as
amended.
FINDINGS
The claimants, machine operator F. J. Alanis and sectionman R. G. Gameros, were
assigned to System Tie Gang TP-13 during the time period which is at issue in this case. The
claimants resided a considerable distance from their work assignments and traveled to their
residences on weekends. Each claimant submitted a single travel allowance sheet to the
Carrier wherein each had claimed travel allowance for the weekends of July 31 through
August 2, August 7 through August 9, and August 14 through August 16, 1998. For the
weekend of August 7 through August 9, 1998, each claimant requested travel allowance
reimbursement for a round trip of 2,502 miles from the work site at Hereford, Texas to his
home in Fresno, California, and then returning to Hereford. However, the claimants did not
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Public Law Board No. 4244
Award No. 233
Case No. 240
Carrier File No. MWE980928AB
Organization File No. 190-13D2-9.CLM
travel to Fresno on August 7 through 9, 1998, but instead stayed at the Best Western hotel
located in Gallup, New Mexico the nights of August 7 and 8, 1998. Gallup is located
approximately 420 miles from Hereford.
The Carrier notified the claimants to attend an investigation to develop the facts and
determine their responsibility, if any, concerning their alleged falsifcation of travel allowance
mileage for weekend travel on August 7 through 9, 1998, between Hereford, Texas and
Fresno, California. As a result of the investigation, the Carrier dismissed the claimants from
service for violating Rule 1.6 of the Maintenance of Way Operating Rules (MWOR).
The record reveals that an assistant foreman with the gang usually collected travel
allowance sheets from the employees who traveled over the weekend on the following
Monday. At the investigation, claimant Gameros testified that he completed his travel
allowance sheet on Wednesday or Thursday following the weekend at issue. Gameros further
testified that he did not travel all the way to Fresno as stated in his travel allowance sheet, and
explained the inclusion of the mileage claimed was the result of habit. According to Gameros,
he did not intend to falsify his mileage. Claimant Alanis testified that he decided to stay in
Gallup because he was too tired to continue traveling to Fresno. Similar to Gameros'
testimony, Alanis tested that he did not intend to defraud the Carrier in any manner.
A review of the travel allowance forms completed by the claimants reveals that each
form contained six lines for an employee to record miles traveled from the work site to home
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Public Law Board No. 4244
Award No. 233
Case No. 240
Carrier File No. MWE980928AB
Organization File No. 190-13D2-9.CLM
and back to the work site. In this case, the forms were supplied to the claimants with a great
deal of information already on the forms, including the work site and the dates of travel. The
claimants simply filled in the location of their homes and the round trip miles they would
normally travel between the work site and their homes, just as they had done routinely in the
past. The Board concludes that the claimants made a mistake when they included the Fresno
round trip of August 7 through 9, 1998 on their travel allowance sheets submitted to the
Carrier. However, there is no evidence of intentional fraud. Had the forms not been partially
filled out before they were supplied to the claimants, or if the Carrier required the employees
to provide a single form for each trip made, the opportunity for an employee to make a
mistake like that made by the claimants could have been avoided.
Even though there is not clear and convincing evidence of fraud in this instance, the
fact remains that the claimants were not careful when completing their travel allowance forms;
and had the Carrier not discovered that the claimants had not traveled to Fresno, each claimant
would have wrongfully received $625.00 in travel allowance. All employees, including the
claimants, are responsible to carefully fill out all documents that concern their receiving
compensation from the Carrier. The claimants were negligent and their actions warrant
discipline, although not dismissal. Therefore, each claimant's dismissal is reduced to a thirtyday suspension.
Finally, this Board recognizes and affirms that all employees must take care to be
accurate when filing for travel allowance. The travel allowance form contains a signature line
that indicates the employee traveling is certifying that the miles claimed were actually traveled.
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· Public Law Board No. 4244
Award No. 233
Case No. 240
Carrier File No. MWE980928AB
Organization File No. 190-13D2-9.CLM
Due to the way the forms were usually handled on this particular gang, there was an
extraordinary opportunity for an erroneous entry; and in the case of the claimants that is what
happened. Nevertheless, this Board does not condone the claiming of travel allowance for
miles not traveled, whether it be inadvertently or intentionally. The decision in this situation
is based strictly on the unique circumstances of this case. Additionally, as result thereof, the
Carrier may wish to change the way the employees are required to claim the trips, so that
similar errors can be avoided in the future. In any event, one should not conclude from this
case that any attempt to defraud the Carrier for these type allowances in the future will be
excused simply because the employee claims an inadvertent error was made when filling out
the form.
The claim is sustained to the extent provided above. The claimants' dismissal shall be
reduced to a thirty-day suspension. They shall be reinstated in accordance with the provisions
of the prevailing scheduled agreement and compensated for time lost in excess of the thirty-day
suspension. The Carrier is to comply with this Award within thirty (30) days from the date of
issuance.
ma s M. Rohling, Carrier er R. B. Wehrli, Employee Member
YtA/
onathan I. Mem, Neutral Member
This Award issued the 3`'day of , _A~ AS 1999.
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