PUBLIC LAW BOARD NO. 434C
Joseph Lazar, Referee
AWARD NO. 2
CASE NO. 2
a
PARTIES ) BROTHERHOOD OF MAINTENANCE
OF WAY
EMPLOYEES -
TO ) and
DISPUTE ) BURLINGTON NORTHERN RAILROAD COMPANY
STATEMENT
OF CLAIM: Claim of D. R. Patton for reinstatement to service,
with payment for all time lost, beginning July 17,
1986, until reinstated to the service of the Carrier,
with all rights intact and that the charges be re
moved from his service record.
FINDINGS: The Board, on consideration of the whole record and
all the evidence, finds that the parties herein are
Carrier and Employee within the meaning of the RailwayLabcr Act,
as amended, that this Board is duly constituted by Agreement dated _
April 10, 1987, that it has jurisdiction of the parties and the
subject matter, and that, pursuant to the Agreement dated April 10,
1987, oral hearing by the parties, including Claimant, has been
duly waived.
Claimant Donald R. Patton, Special Equipment Operator,
was dismissed on July=17, 1986 "for alleged improper and unauthorized sale of company material and use of company equipment in connection with used ties and miscellaneous structures, including violation of General Rules A, B, D and L plus additional General Rules
530, 530A, 530B, 532 (C) and 535 of the Rules of the Maintenance of
Way, effective April 27, 1986." These rules read as follows:
General Rule A: "Obedience to the rules is essential to safety and
to remaining in service. The service demands the
faithful, intelligent, and courteous discharge of
duty."
General Rule B: "Employees must be familiar with and obey all rules
and instructions and must attend the required classes. If in doubt as to the meaning of any rule or-instruction, employees must apply to the supervisor
for an explanation."
AWARD
NO. 2 (p. 2)
CASE NO. 2
General Rule p: "Employees must cooperate and assist in carrying
out the rules and instructions and must promptly
report to the proper officer any violation of the
rules or instructions, any condition or practice
which may imperil the safety of trains, passengers, -
or employees,-and any misconduct or negligence af- -fecting the interest of the company."
d
General Rule L: "Employees must conduct themselves in such a mannerthat their company will not be subject to criticism-or loss of goodwill."
General Rule
530:
"Employees will not be retained in the service who
are careless of the safety of themselves or others,
disloyal, insubordinate, dishonest, immoral, quar- -
relsome, or otherwise vicious, or who do not conduct
themselves in a manner that the railroad will not be
subjected to criticism and loss of goodwill."
Rule
530A:
Factual Report of Information. Employees who with
hold information or fail to give factual report of
any irregularity, accident or violation of the rules
will not be retained in the service."
Rule
530B: - "Theft
or pilferage shall be considered sufficient _
cause for dismissal from railroad service."
Rule
532(C):
"Other Business or Occupation. Employees must not
engage in other business or occupation unless they -
have applied for and received written permission
from the proper authority."
Rule
535:
"Unless specifically authorized, employees must not
use the railroad's credit and must neither receive
nor pay out money on the railroad account. Property
of the railroad must not be sold nor in any way dis
posed of without proper authority.
All
articles of -
value found on railroad property must be cared for
and promptly reported."
The transcript of investigation shows the following test-
imony by Mr. R. C. Wagoner, General Roadmaster, Springfield, Missouri:
"Q. Why did you remove Mr. Patton from service?
A. For his alleged misuse of company machines off of company property
and on company property, and his receipt of money for company material.
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Q. Why did you not have Mr. L. O. Ghramm (Roadmaster who supervised
Claimant) remove Mr. Patton from service?
A. Division Superintendent W. D. Macormic had removed Mr. Gramm from
service prior to 9:25 p.m.
a
Q. Do you know why Mr. Macormic removed Mr. L. O. Ghramm from service?
A. For the sale of company material.
Q. Mr. Wagoner, when used ties are available, what has been the usual
practice of disposal of those ties in the past?
A. Depending on the area, some places we give them to adjoining landowners; some places we fill out a form that releases us from liability, chargeso much per tie, depending on how good the tie is.
That's just--any individual can receive a form; then on a big tie
program we get a contractor who comes in and takes all the ties
at a set amount.
Q. Is it permissible for an employee to take a used or scrap tie?
A. If he has a permit, for his use only, not for resale.
Q. Is it permissible, then, for an employee to sell used or scrap
ties for personal gain?
A. No, sir.
Q. May employees charge money for loading or hauling used ties with
company equipment?
A. No, sir.
Q. Has it been company policy to allow employees -to engage in other -
occupations outside of railroad employment without permission or -
authority?
A. No, sir.
Q. What is the standard procedure for an employee desiring to enter
into business outside of the railroad?
A. To get permission from the proper officer.
Q. Does that permission have to be in writing?
A. Yes, sir." (Tr., pp. 6-7).
The transcript of investigation shows the following testimony -
by Mr. D. J. Grisham, Special Agent, Joplin, Missouri:
"Q. Is it your duty to investigate misappropriation of company equipment and material?
A. Uh, yes, sir.
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Q. Did you recently become aware of possible misappropriation of
material and equipment in the Joplin area?
A. Uh, yes, sir.
Q. Did this misappropriation appear to involve company employees? --
A. Yes, it did.
Q. Which employees did it appear to involve?
A. Uh, three at the time had been Rick. Patton, Lester Ghramm, L. 0.
Ghramm, Roadmaster.
Q. Rick Patton? Is he the D. R. Patton who's the principal of this
investigation?
A. Yes, Sir.
Q. How did you become aware of this misappropriation?
A. Uh, originally, uh, by rumors just floating around Joplin area
that ties were being sold by company employees, and then by, uh, _
again, by word of--uh ties that were sold and that employees were
pocketing the proceeds from them, and we just started an invest- -=
igation.
Q.' Did you take any statements of any witnesses that may have--?
A. Yes, Sir. I had, uh, during the past few months I had made nota
tions of names of people who I knew were getting ties, and I had
a few tie con tracts in my possession. Then I contacted these
people and obtained the statements from them of how they purchased=
the ties and how the payment was made and who the payment was
made to.
Mr. Spears: fir. Hiett, do you intend to have these, uh, people here
that signed these statements at the investigation?
Hiett: Mr. Spears, that information--some information. regarding
presence of witnesses may be brought out during the investigation.
Mr. Spears: Besides, I'd like to go on record to object to any sate- -
ments that's being--that's entered into the investigation that
there's no--if the people are not here that signed the statements
where I can cross examine, I'd like to object to the entering of
statement.
Mr. Hiett: Your objection is duly noted and will be made a part of
the record of this proceeding.
Q. Is it ready?
A. Just a second. I'm trying to separate out the two here. okay I
have a statement here from, uh, Gary D. Yoder, Y-o-d-e-r, and he -
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CASE- NO. 2
lives at 637_1-7. Shefferdecker, Joplin. He stated that he has
1
been picking up pies from the railroad and that he states in i
his statement he saw after working hours, uh, Rick Patton was '
loading ties into, uh, a vehicle using a company speed swing to
do so, that that was at Carl Junction; and then he also stated
that at the old Sixth Street yard after-working hours he also =
again saw, uh, Rick Patton loading ties. Uh, and this was also
after working hours. It was6Rick Patton and two other gentlemen
bading into a black Chevy--black pickup at that time.
Q. Would you like to enter that statement as an exhibit?
l.. Yes; sir.
Mr. Hiett: We'll mark this statement as Exhibit A of -the Carrier.
Mr. Spears: I'd like to examine the statement, Mr. Hiett.
Mr. Hiett: Exhibit A, statement from Mr. Gary D. Yoder. Mr. Spears
may examine the statement.
Q. Mr. Grisham, do you have any other statements to introduce?
A. Yes, sir. I have a statement from, uh, Tony Mack Williams, taken
from him in Joplin, Missouri. In this statement he states that
he was approached by Rick Patton, or D. R. Patton , about picking
up ties at Carl Junction yards.
Mr. Hiett: We'll mark that Exhibit B. This statement taken from Tony
Mack Williams. Mark it Exhibit B.
Q. Mr. Grisham, would you read this statement, Exhibit B, into the -
record.
A. You want me to read the complete statement?
Q. Yes. -
A. This statement is given in reference to used railroad ties that I
purchased from the Burlington Northern Railroad reference to a -
tie contract dated January 4, 1985, for used ties cut of Carl
Junction, Mo., Yards. 2 was approached by Rick Patton about picking
up a lot of ties at the Carl Junctions Yards. Pick told me that
I would sell the ties, have the check put in my name, and then
split three ways with him and Lester Ghramm. Rick said that we
would pay Tuffy Ghramm for one load and then not pay him for another
load. I- got approximately 4,000-5,000 ties (used switch and 8'
ties) out of the yards. The ties were loaded on my trucks and
trailers by Rick. Patton using the Burlington Northern speed swing.
I sold the ties to Payless in Joplin (approx. 1500 - 8' ties),
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Southerland Lbr. in Pittsburg, Kansas (approx 100-8' ties),
100 ties to Snyder Bridge and the remaining ties to different
individuals out of my yards through ads
in
the paper. I sold
the ties at approx. $4.00 each. When I would get paid forthe
ties I would cash the checks and per agreement pay Rick Patton
and Lester Ghramm a third each. During this time Tuffy was
given approx. $900.00 in cash as he refused a check. A couple
of times I gave Tuffy cash at the railroad depot on W. 20th or
to give the money to Rick and Lester and they were supposed to
give the money to Tuffy. Sometimes Tuffy-would say--just give
the money to Rick or Lester. I hired Kenny Townsend from
Joplin to haul the ties out of Carl Jct. Yard. I believe he
hauled at least 200 ties to Suthwerland Lbr. in Pittsburg,
Kansas, for which I paid him approximately $200.00. I paid
Rick Patton and Lester Ghramm approximately $5,000 for their
share of the ties from Carl Jct. -
In reference to the piggyback ramp I removed, for the Burlington
Northern Railroad at 2101 W. 20th St., Joplin, Mo., I was told
by Rick Patton and Lester Ghramm, while at my house, what to
bid on the ramp removal. I went to Tuffy's office at the old
BN Depot at 10th & Main in Joplin and told Tuffy that I bid
$8,300.00 to remove the dock. Tuffy said, let's make it $9,300.00Rick and Lester had told me that Ames Excavating had low bid of
$12,000.00. The same day I made the bid Tuffy told me I had the
bid and to get it started. We used Burlington Northern Railroad
speed swing, air compressor and jack hammer to do the work with.
Rick Patton worked with me every day until it was done. Lester
would be there from time to time running the jack hammer or speedswing. Don Benefield was there with the welder cutting the rebar when needed. The contract was made by Tuffy--was not made
by Tuffy until the job was about completed and then he back dated
it two days. The Burlington. Northern paid me $9,300.00 by check.
I cashed the check.and paid Rick Patton $4,000.00 in cash with
the understanding that he split it with Lester Ghramm and Tony
Patton. I -want to say that we actually started working on the
dock removal four days before the contract was released and then
-
it was back dated two of those four days.
In reference to used tie contract, dated May 7, 1985, for the
removal of ties from 6th Street Yard in Joplin. I had an agreement with Rick Patton and Lester Ghramm to move ties from 6th
Street. Rick Patton loaded approx. 400 switch ties and 8' ties
onto my vehicles with the Burlington Northern speed swing. The
ties were sold to Payless Cashways of Joplin for $1200.00. My
agreement with Rick and Lester was a three-way split. In this
case I didn't give them their money as I had been withstanding
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AwARZ :;C. 2
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CASE ::C. 2
all expenses and Rick. and Lester got the clear profit. Charles
Syketa and I removed 100 ties from. 6th Street and sold to Payless for $4.00 each as I had done in the past. Approximately
two years ago I got approx.
200
8' ties from Tuffy Ghramm, but
I did not pay any money to him. The ties came from Townes Yard.
When I sold the ties I paid Rick and Lester, a third each, as
agreed in all other cases. Irt the last three or-.four years I
had gotten 7,500 - 10,000 used ties from the Burlington Northern
Railroad. All of the ties were gotten through Rick Patton and
Lester Ghramm. In all cases except for the one time
I
didn't
split on the load of 400 ties from the 6th Street Yard, I have
split allprofits three ways between myself, Rick Patton and
Lester Ghramm.
Q. Mr. Grisham, did Mr. Williams offer to come to this
investigation
to personally testify about the facts?
A. Yes, sir, he did.
Q. Is there a reason why he is not here today?
A. Uh, yes, sir.
Q. What is that reason?
A. Okay, he stated to me that since he gave the statement and appar
ently people became aware of it he's received several phone calls
in what he considered to be a threatening manner. Uh, someone,
parties unknown, cut the liner on a swimming pool they'd just re
cently installed; and also last week end, this past week end,
Saturday, uh, in Joplin on Main Street he met Lester Patton and,
uh, Lester, of course, was, he said, flipped him the finger, but
also aimed his vehicle at Tony Williams' vehicle as though he
was going to hit him and at the last minute he did not; and through
these incidents, his wife has felt that she did not want him to
appear here today.
Mr. Spears: Mr., uh, all right, this is hearsay. Uh, I'd like to
object to this statement that Mr. Grisham has entered here. Uh,
Mr. Williams could have been here if he'd so desired, and I'd like
to object to Mr. Grisham's statements in regards to why he's not
here. It's all hearsay.
Mr. Hiett: Your objections are duly noted and made a part of the
record of this proceeding.
Q. Mx. Grisham, uh, Mr. Grisham, in your comments about why Mr., uh, -
Mack could not appear here, you mentioned that Lester Patton had,
uh, made a obscene gesture towards him, uh, could you clarify that?
A. Yes, sir, if I did say that. Uh, Mr. Williams advised me it was
Lester Ghramm. -
Q. Do you have a copy of the contract for the TOFC Ramp removal that
Mr. Williams referred to?
A. Yes, sir, I do.
Q. Mr. Grisham, referring to this contract, does this contract
anywhere allow for Burlington Northern employees to assist Tony
Williams Construction Company?
A. No, sir, it does not.
Q. Does it allow for use of Burlington Northern equipment?
A. No, sir, it does not.
Q. Do you have any evidence that Mr. Patton received money for-work
piggyback ramp removal from Mr. Williams?
A. Uh, yes, sir, I do. I have a form 1099, it's a miscellaneous
income form of the Internal Revenue service, and it shows to Donald R. Patton from Tonly Williams shows $1,700, uh, which Mr. Wil--_
liams states that was for his share on the dock so he could turn
it in to his income tax.
Q. We'll enter this as, uh, Exhibit D. This will be marked later, as
it appears to be an original. Does Mr. Williams want this copy
back?
A. Yes, sir, he does.
Mr. Hiett: We'll mark it as Exhibit D after the proceeding is over.
Q. Do you have any other evidence that Mr. Patton may have received
money for work on the piggyback ramp?
A. Yes, sir, I have a handwritten receipt signed by Mr. Rick Patton
received $1,700 for work on--labor on Burlington Northern Railroad
located at Ruth Yards, 20th & Roosevelt
in
Joplin.
Q. ... receipt for--?
A. Receipt. It's a handwritten receipt, uh, signed by Rick Patton
receipt of $1,700.
Mr. Hiett: Mr. Spears and Mr. Patton, would you like to review Exhibit
E?
(Pause for document review by Messrs. Spears and Patton)
Q . ...Mr. Grisham, in your investigation, did you find any information.
that indicated Mr. Patton had written authority to engage in this -
business with Mr. Williams?
A. No, sir.
Q. ...to assist removal of the ramp?
A. No, I did not.
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0. With regard to the statement by Y.r. Williams that he received
between. 4,000
and 5,000
ties through Rick Patton and Lester
Ghramm at Carl Jct. Yards, did you find any kind of written auth
ority to Mr. Patton to do this?
A. No, sir.
Q. Did you have any--did you discover any written authority to Mr.
Patton to operate the Burlington Northern speed swing to engage
in this activity?
A.
No,
sir.
b
Q. Did you discover anything in your reseafbh that indicated that
Mr. Patton had permission to accept money for delivering railroad-ties?
A. No,
sir.
Q. Did you discover any other possible misappropriations?
A. Uh, yes, sir, reference to use of company equipment.
Q. And to perform what kind of work?
A. Uh, to build a retaining wall out of railroad ties.
Q. Do you have any evidence to substantiate that statement?
A. Yes, sir, I have two things. First, I have the photographs of
the retaining wall. It's taken 44th and Indiana Street in Joplin,
Missouri. It's for a Bob Himer. This wall was built, uh, accord=
ing to (pause to search through file)--on July 17th, Lester Ghramm,
he advised me that he and Rick Patton and another said name of
Gary Wyatt built this retaining wall at 44th and Indiana, and that
they did use the company backhoe to do it with. Matter of fact,
he said they used the backhoe two different times down there. Also,
an interview with a Gary Wyatt, the other party involved. He also
admitted that, uh, he and Lester Ghramm and Rick Patton built the
wall and used the company backhoe to do it with.
Q. One of the pictures you've just shown me is a part of, uh, what
we will call Exhibit H, shows some steps with some writing on the
steps. Would you read that writing.
A. Yes, sir, this is in the center of the wall in front of--the-house.
It's a step and in concrete it has the name "Les," "Rick," and
"Dave."
Q. Did you receive any other information regarding possible misuse of
company equipment?
A. Uh, yes, sir, I did. Uh, same day on July 17th, LesterGhramm
advised me that they had used a speed swing to build a racetrack in
the chatt piles out of Joplin for a man named Tullis. He said they
used a speed swing to bulldoze.
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Q. Has that done with, u.':, permission from the Company that you're l1~
aware?
A. No, sir. P-nd, uh, he advised that time that the track was built
by himself and Rick Patton. I contacted--it was found out to be
for a Frederick Ward Tullis, Jr. It was a--in the chatt piles
north out at North Main and Joplin Street. I contacted Mr. Tullis,
and he advised that he had paid $300 to Lester Ghramm and Rick
Patton to use the speed swing to construct a racetrack in the
chatt piles. It was a, uh, what is that called a circular track?
It had a lot of curves in it but it didn't come back around to
the starting location. And he stated the speed swing was used. -
He issued a check to Lester for $149.99, and he had a partner
named Jim Martin who paid $150 in cash.
Q. Were you able to find a copy of that check?
A. Uh, I don't have a copy of it at this time. We did check their.
records and found where it was written, and
I
do have a.copy still°coming on it though.
Q. Did you ever find any evidence that Mx. Patton had turned any
money into the Burlington Northern for any of the activities that
he's alleged to have participated in?
A. No, sir.
Q. Mr. Grisham, when did you inform Mr. Wagner of the statements
that you presented here? -
A. That'd been on the 17th of July this year.
Q. What action did Mr. Wagner take?
A. At that time, uh, he pulled Mr. Patton out of service.
Q. Were you present as a witness?
A. Yes, sir.
Q. Did you question Mr. Patton about the use of company equipment
at that time?
A. 1, uh, tried to talk to him at the time and he just said he would
not comment on the use of the backhoe or speed swing for personal
use. Uh, he advised he had not received any money from any sales
of ties, and he admitted working on the TOFC or the old piggyback
ramp, he said for a short time. Uh, the only thing he did say
about selling railroad ties that he had sold railroad ties to Jim
Burt Landscapin g, uh, prior to the Frisco-Burlington Northern
merger.
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O. Did lo::, u::, questicr, hin about sale of ties at Carl Junction?
A. Yes, sir, I did, and he just said he didn't receive any money
from the sale of the ties.
Q. Did you question him about if he'd received money for working
on the TOFC ramp?
A. Uh, yes, sir, and he said lie did not receive any money for his
work on the ramp.
Q. Did you talk to Burt Landscaping?
A. Yes, sir, I did, and he advised approxmately three to four years
ago that he did buy his used railroad ties from Rick Patton, and
he still had his phone number and name on his books, but he said
it had not bought any recently from him." (Tr. ,pp. 9-18).
The transcript of investigation shows the following testimony
by Mr. Donal Dean Benefiel, Rail Complex, Springfield, Missouri:
"Q. Did you have occasion to work on removing a TOFC ramp in Joplin?
A. Yes, I did.- I cut some rebar out of it.
Q. Who asked you to do this work?
A. I was told to by my boss, Roadmaster Ghramm, Lawrence Ghramm.
Q. Do you know a Mr. Tony Williams?
A. Yes, sir, I do.
Q. Was he present at the time you were working on that ramp?
A. Just sometime. I don 't know what position or anything. I -just -
cut the rebar and that was my job. That was what I was told to do.
Q. Did Mr. Williams pay you for working on that ramp?
A. No, sir. -
Q. Did you observe any other people working or. that ramp removal?
A. Yes, sir.
Q. Were any of them Burlington Northern employees?
A. Yes, it was.
Q. Was Mr. D. R. Patton one of those employees?
A. Yes, sir.
Q. Have you ever been to Carl Junction?
A. Yes, sir.
Q. While you were there--were you there in the Spring of 1985?
A. Yes, sir.
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U. while you were there, did you observe any erployees loading
ties?
A. Yes, sir, and I helped. I was told to by my boss, Rnadmaster
Ghramm.
Q. PIhat equipment was being used?
A. We was told to use the speed swing and whatever else we could
use, by hand or whatever it took. We was dismantling the yards.
Q. T^?as Mr. Patton one of the employees that was working there--
A. That's true.
Q. Was he operating the company equipment that was involved in
loading the ties?
A. Yes, sir." (Tr., pp. 23-24).
The transcript of investigation shows testimony by Claimant
Patton:
"Q. He (Williams) states, "The ties were loaded on my truck and
trailers by Rick Patton using the Burlington. Northern-speed
swing." Is this true? A. I loaded a few ties on his truck.
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Q. Let's turn now to the TOFC ramp that Mr. Williams talks about.
He states in his statement that you told Mr. Williams what to
bid on the ramp removal. Was that true?
A. No. Uh, there was some ties that Mr. Williams got out of Ruth
Yards, and we was pulling 'em out of a track out there and they
had just been in the road and he'd already got permit to get
'em, and they told me--Tuffy told me to set 'em right on his trail
er so he could just haul 'em out of there and they didn't have
to mess with 'em. He heard us talking about the ramp out there,
and I did say that they was taking bids on it to him. He asked
me what we was talking about, you know, and I told him they was
going to tear out the loading ramp, but I didn't tell him no
amount of money.
Q. Did you work on that ramp with Mr. Williams?
A. Yes, sir. He called me on a Sunday morning. He'd run a screw
driver in his hand, working on an air compressor he had rented,
and he was at the hospital and told me that his dad was out there
working on this wall--or ramp by himself, and asked me if I'd get
me and Lester to come out there and help him because his dad's
not a very well man that ought to be--which he's really overweight,
and asked me if I'd go out there and help on this ramp, and he'd
pay us for coming over there to help on it. And then later on,
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: ; . r3 13
when he got there his hand ryas all bandaged up, and he couldn't
do any work and I wound up taking a week's vacation and working
on this ramp under his supervision.
Q. Did you receive money for working on this ramp?
A. Yes, sir.
e
Q. When Mr. Grisham questioned you when you were removed from service you told him you received no money from this ramp--
A. No.
Q. Why did you tell him that?
A. I didn 't tell him that. You know, I mean he was asking a lot
of different question, and on questions like that I -told him I
didn't want to answer it. That night he askmed me them questions
I'd been drinking. I'd already knew I was going to be fired, my
wife and them and I'd stopped off and had two, three beers at a
friend of mine's house, and, you know, I mean, I might've miss-if he misunderstood me or I might've misunderstood him.
Q. Did you ever receive written authority from Mr. Ghramm to, uh,
work with Mr. Williams on this ramp?
A. No, I didn't receive no written authority, verbal.
Q. Did you receive Authority?
A. Well, I told him I was taking a week's vacation to work on that
ramp. I had a week's vacation coming, which wasn't planning on
taking until he'd hurt his hand and asked me to work on it. I
didn't know I was even going to be working on the ramp until after -
he'd got hurt.
Q. At 6th Street, Mr. Williams stated, "I had an agreement with Rick
Patton and Lester Ghramm to remove ties from 6th Street. Rick
Patton loaded 400 switch and 8' ties onto my vehicles with the
BN speed swing." Do you remember doing this? -
A. .. And after I got off work I loaded 40 ties on his truck to help
him finish his load up before I went home, which I did not receive
any money for.
Q. I'd like to call your attention to Exhibit A, which is from Mr.
Yoder. Mr. Yoder states, "After working hours I saw Lester Ghramm
and Rick Patton loading these ties into a gold Jeep pickup and blue
(I think) Chevy pickup with the speed swing. You recall loading
ties in such fashion at Carthage Junction--Car Junction?
A. I loaded a--rex Hill had a blue Chevy pickup. I loaded ties in
his truck, and then I hauled a few ties which Lester used around
his driveway, in my gold truck. -
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Q. Did you have permission. to load thcse ties?
A. Yes, sir.
Q. From Mr. Ghramm?
A. Yes, sir. s
Q. Did Mr. Ghramm ever give you any written permission. to remove ties?
A. Huh?
Q. Did Mr. Ghramm ever give you any written permission to remove ties?
A. No
Q. Exhibit H is--involves pictures of a retaining wall. Do you
recall working on that retaining wall?
A. Yes, sir.
Q. ;Did you use company equipment to build that retaining wall?
A. Yes, there was a company machine used there.
Q. Did you operate it?
A. No, sir.
Q. Wereyou there helping on the construction of that wall?
A. That--yes. The machine was only used there to move back some
dirt, I don't remember, one-two days; and then later on Mr. Wagner
found out about it.
Q. Is the picture showing the steps-
A. I wasn't finished.
Q. Oh, I'm sorry. Go ahead.
A. And, uh, Mr. Wagner got Lester--we was up here to Springfield when
we was fired once before--and got Lester in to the bathrooms and
told him he'd heard that we'd been using the machines off company
property; and for him not to leave again,; and they haven't been
off railroad property since.
Q. Mr. Grisham made some comments when--about discussion with Mr.
Lester Ghramm about a racetrack that you and he allegedly built.
Do you recall building this racetrack?
A. Yes, sir.
Q. Was that with the company speed swing?
A. Yes, sir.
~5 -
p. Was that done with authority from Pr. Ghramm?
A. Yes, sir. I had permission from--I told--asked him about
using the machine. I don't think he had it in that statement, but
I
could get him to come in as a witness." (Tr.,
pp. 30-37).
s
---------------
The Organization made timely objection to the Exhibit B statement by Tony Mack Williams on grounds of hearsay. Mr. Williams
was not an employee of the Carrier, was not under the Carrier's
supervision or control, and was not subject to subpoena power of
the Carrier. Under the circumstances, it is well settled in the
railroad industry that written statements may be admitted into
investigations even though the persons making such statements are
not available for cross-examination. It should
be
noted that the
Claimant knew of the written statement, the identity of the person
making the statement, the nature of the statement, and had opportunity to communicate with him and to make inquiry. The record indicates
that Mr. Williams would have appeared at the investigation to testify
had there not occurred acts construed as intimidation. Considering
the nature of the transactions involving Mr. Williams as detailed in
his statement, evidence of record pertaining to Mr. Williams' reputation allows doubt as to his credibility. Additionally, there is
allegation
by
the Organization that Mr. Williams was subjected to -
improper pressure in obtaining the statement from him.
The Board has given serious consideration to the Organization's
objections concerning Mr. Williams' statement. For chiefly this
reason, the transcript of investigation has been quoted above at considerable length, and, even so, additional quotation might have been
made. Close scrutiny of the record was made to determine the weight
to be given to Mr. Williams' statement and to determine whether his
statement is corroborated by other evidence of record.
The evidence of record fails to show probative evidence showing
improper pressure brought upon Mr. Williams in regard to his making
the statement. Further, the evidence of record shows corroboration
of Mr. Williams' statement in significant respects. The testimony of
Mr. Benefiel regarding the work at the TOFC ramp in Joplin and Claimant's participation in that work corroborates the events recited by
Mr. Williams, and Mr. Benefiel's testimony concerning the work at
Carl Junction performed by Claimant is further corroboration. Claim- -
ant's testimony in these respects is additional corroboration. Ob
viously, Mr. Williams' statement is not pure fabrication. It was
not arbitrary or-capricious for the Carrier to accept Mr. Williams'
statement relating to the pricing ($9,300) of the work at the ramp
in view of Claimant's testimony of discussion on this. In the opin
ion of the Board, the Carrier reasonably could conclude that payment
was made to Claimant as stated by Mr. Williams.
~3~ta~
Claimant has admitted that he did not have permission from
the Company to use Company equipment on the race track
construction.
Although Claimant states that he received verbal permission for the
use of Company equipment regarding the retainer wall construction and
other incidents, he admits that he received no written authorization
to do so. In the circumstances, it was not arbitrary or capricious
for the Carrier to conclude that admitted use by Claimant of Company
equipment off the Carrier's property was an unauthorized violation of
cited rules. It was not unreasonable for the Carrier to conclude
that Claimant was paid for his work with Company equipment in violation of cited rules.
Viewing the record as a whole, there is substantial probative
evidence in support of the carrier's determination that Claimant violated General Rules A, B, D, and L and General Rules 530, 530A, 530B,
532(C) and 535 of the Rules of the Maintenance of Way. In the circumstances of this case, and in the light of Claimant's past service
record, dismissal is not excessive discipline.
A W A R D
1. The Carrier is not in violation of the Agreement.
2. The claim is denied.
JOSEPH LAZAR, CHAIRMAN AND NEUTRAL MEMBER
DATED:
<-'..~GT~.
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