PUBLIC LAW BOARD NO. 4244
Award No. 256
Case No. 263
Carrier File No. 14-99-0179
Organization File No. 30-13KCT-991.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 17,
1999, Mr. R. H. Maasen was dismissed from service for
allegedly violating Rule 1.6, 1.9, 1.25 and S-26.1 in
conjunction with his alleged misappropriation of BNSF
property and material.
2. As a consequence of the Carrier's violation referred to
above, Mr. Maasen shall be reinstated with seniority,
vacation, all other rights unimpaired, the discipline shall
be removed from the Claimant's personal record, and he
shall be compensated for all wages lost in accordance with
the Agreement.
Public Law Board No. 4244
Award No. 256
Case No. 263
Carrier File No. 14-99-0179
Organization File No. 30-13KCT-99 1.CLM
INTRODUCTION
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 claimant, track supervisor R. H. Maasen, performed service for the Carrier at
Kansas City during the relevant period. In April or May 1999, the Carrier's Internal Audit
Department requested that special agent L. L. Montgomery commence an investigation
concerning numerous alleged improprieties by the Kansas City Terminal Maintenance of Way
team. As part of his investigation, special agent Montgomery interviewed the claimant on
August 13, 1999. At the conclusion of the claimant's interview, special agent Montgomery
discussed his findings with the claimant's supervisors.
The Carrier subsequently instructed the claimant to attend an investigation for the
purpose of ascertaining the facts and determining his responsibility, if any, in connection with
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Public Law Board No. 4244
Award No. 256
Case No. 263
Carrier File No. 14-99-0179
Organization File No. 30-13KCT-991.CLM
his alleged misappropriation of Carrier property and materials. As a result of the formal
investigation conducted on September 7, 1999, the claimant was dismissed from service for
violating Rules 1.6, 1.19, and 1.25 of the Maintenance of Way Operating Rules (MWOR) and
Rule S-26.1 of the Maintenance of Way Safety Rules.
The following rules are pertinent to the Board's decision in this case. Rule 1.6 of the
MWOR entitled "Conduct," provides as follows:
Employees must not be:
1. Careless of the safety of themselves or others
2. Negligent
3. Insubordinate
4. Dishonest
5. Immoral
6. Quarrelsome or
7. Discourteous
Rule 1.19 of the MWOR entitled "Care of Property," provides as follows: "Employees
are responsible for properly using and caring for railroad property. Employees must return the
property when the proper authority requests them to do so. Employees must not use railroad
property for their personal use." Rule 1.25 of the MWOR entitled "Credit or Property,"
provides:
Unless specifically authorized, employees must not use the
railroad's credit and must not receive or pay out money on the
railroad account. Employees must not sell or in any way get rid
of railroad property without property authority. Employees must
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Public Law Board No. 4244
Award No. 256
Case No. 263
Carrier File No. 14-99-0179
Organization File No. 30-13KCT-991.CLM
care for all articles of value found on railroad property and
promptly report the articles to the proper authority.
Safety Rule S-26.1 entitled "Conflict of Interest," provides as follows:
No officers or employees of the company may have personal
interests which might conflict or appear to conflict with the
interests of the company or its affiliates or which might influence
or appear to influence their judgment in performing their duties.
The outside activities and affairs of all officers and employees
should be conducted so as to avoid loss or embarrassment to the
company and its affiliates.
Employees must not engage in another business or occupation
that would create a conflict of interest with their employment on
the railroad or would interfere with their availability for service
or the proper performance of their duties.
This policy is designed to foster a standard of conduct which
reflects credit in the eyes of the public on the company, its
officers, and its employees, and which protects the reputation and
financial well-being of the company. There is no intent to
interfere with the personal interests or activities of officers and
employees.
The Organization contends that the Carrier failed to schedule an investigation within the
time limits set forth in Rule 13 of the Agreement. The Carrier asserts that the investigation
was scheduled promptly as prescribed by Rule 13 of the Agreement. Rule 13 entitled
"Discipline," provides, in relevant part, as follows:
(a) Investigations. Except as otherwise provided in Appendix
No. 11 of this Agreement, no employe who has been in
service more than sixty (60) calendar days will be
disciplined without first being given an investigation,
which will be promptly held, unless such investigation is
waived and discipline is accepted in writing by the
interested employe.
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Public Law Board No. 4244
Award No. 256
Case No. 263
Carrier File No. 14-99-0179
Organization File No. 30-13KCT-991.CLM
Although an investigation by the Carrier commenced in April or May 1999, the record
reveals that the claimant's supervisors first became aware of the claimant's possible rule
violations on August 13, 1999. Prior to their discussion with special agent Montgomery on
that date, the claimant's supervisors had no knowledge of any wrongdoing by the claimant.
The claimant was promptly issued an investigation notice on August 17, 1999, which provided
that an investigation would be held on August 26, 1999. Thereafter, the investigation was
postponed and subsequently conducted on September 7, 1999. Based upon these facts, the
Board concludes that the Carrier scheduled and conducted an investigation in accordance with
Rule 13 of the Agreement.
The record establishes that the claimant utilized a Carrier backhoe, a Carrier employee
and ballast belonging to the Carrier in order to construct a parking area at his residence.
According to the claimant, this parking area was for a Carrier vehicle and was constructed
with the authorization of his supervisor, roadmaster Crocker. However, the claimant
acknowledged that his use of Carrier equipment, employees and material constituted a violation
of the Carrier's rules and policies. Jr. at 19). Accordingly, the Board finds that the claimant
violated Rule 1.19 of the MWOR due to his personal use of Carrier property
The record further establishes that the claimant utilized a Carrier vehicle to transport
equipment which he utilized for private railroad construction. Additionally, the claimant
transported himself in a Carrier vehicle to and from his assignments as a vehicle washer with a
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Public Law Board No. 4244
Award No. 256
Case No. 263
Carrier File No. 14-99-0179
Organization File No. 30-13KCT-991.CLM
private contractor. The Board finds that these actions by the claimant constitute further
violations of Rule 1.19 of the MWOR. Additionally, the claimants acts of dishonesty violated
Rule 1.6 of the MWOR.
The claimant testified at the investigation that he permitted the credit card issued to him
by the Carrier to be utilized by the employee who relieved him from duty. According to the
claimant, this was done so in accordance with the policy set forth by roadmaster Crocker.
However, the claimant acknowledged at the investigation that his actions violated Carrier rules
and policies. Based upon the record, the Board finds that the claimant violated Rule 1.25 of
the MWOR in connection with the use of his Carrier issued credit card by other employees.
Furthermore, the Board finds that the claimant violated that part of Rule 1.25 which provides
"employees must not sell or in any way get rid of railroad property without proper authority"
due to his utilization of Carrier owned ballast at his residence even if its purported use was to
support a Carrier vehicle stored at the claimant's residence.
At the investigation, the claimant acknowledged that he engaged in outside employment
with a private contractor which entailed washing Carrier vehicles on the KCT Railway.
However, the claimant testified that he had authorization from roadmaster Crocker, to engage
in such employment. Additionally, the claimant stated that he did not claim payments from the
Carrier for time when he was washing vehicles for the private contractor. At the hearing, the
Carrier failed to present evidence which would contradict the claimant's testimony concerning
his outside employment.
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Public Law Board No. 4244
Award No. 256
Case No. 263
Carrier File No. 14-99-0179
Organization File No. 30-13KCT-991.CLM
Based upon the record, the Board finds that the Carrier failed to present evidence which
would indicate that the claimant's employment with the private contractor created a conflict of
interest with his employment by the Carrier. Additionally, the Carrier failed to demonstrate
with any specificity that the claimant's employment with the private contractor interfered with
his availability for service or the proper performance of his duties. The Board further finds
that the claimant's outside employment created no loss or embarrassment to the Carrier. For
each of these reasons, the Board concludes that the Carrier has failed to satisfy its burden of
proof that the claimant violated Safety Rule S-26.1.
However, based upon evidence of the claimant's proven violations of Rules 1.6, 1.19
and 1.25 of the MWOR, the Board finds that the discipline assessed the claimant was justified
under the facts and circumstances of this case. Accordingly, the claim is denied.
AWARD
The claim is denied.
Thomas M. Rohling, Carrie ember R. B. Wehrli, Employee Member
rnathan 1. Klein, Neutral Member
This Award issued the ~'~day of
s
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