NATIONAL MEDIATION BOARD
PUBLIC LAW BOARD NO. 4768
BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES
and
BURLINGTON NORTHERN RAILWAY COMPANY
AWARD N0. 64
Carrier File No. iMWB 92-03-23
Organization File No. S-P-465-W
STATEMENT OF CLAIM
1. The dismissal of Machine Operator S. L.
Humphries for alleged "violation of Rules 564 and 574 of
the Safety Rules and General Rules, Form 15001, 8/81 on
August 28, 1991" was arbitrary, on the basis of unproven
charges and in violation of the Agreement.
2. Claimant S. L. Humphries shall be returned to
service with seniority unimpaired as Machine Operator at
Seattle, Washington or be allowed to exercise seniority
over any junior employe in accordance with Rule 21 F of
the effective Agreement. We further request that Claimant be paid for all lost time and that he be allowed any
and all benefits of which he is presently being deprived
including but not limited to health and welfare benefits,
vacation and personal leave qualification. We also
request that his personal record be cleared of any
reference to this discipline.
F I N D I N G S
The Claimant was subject to an investigation hearing under the
following charge:
Ascertaining the facts and determining responsibility, if any, in connection with your alleged falsification of two F-27 Reports, Form No. 15016-E, dated August
28, 1991, and two Personal Injury Reports, Form No.
12504-E, dated August 28, 1991, in connection with your
alleged injuries on August 28, 1991.
Following the hearing, the Claimant was dismissed from service
on October 17, 1991.
During the investigative hearing, the Claimant admitted that
he had not suffered an injury on August 28, 1991 and that he had
falsely used the name of a fellow employee as a witness to the
alleged injury. The Claimant's defense is that the alleged
incident had in fact occurred a week earlier, on August 21, 1991,
and that he did not believe the incident had caused him injury
until some time later.
The Board finds that this explanation, if true, does not
explain or excuse the false reporting of an August 28 incident.
The Claimant acknowledged that he was fully aware of the need for
prompt and accurate reporting of such incidents. Further, with the
Claimant's affirmative defense of an earlier incident, it became
his responsibility to offer definitive proof. One employee whom
the Claimant contended was involved in the earlier incident was
available at the hearing as a potential witness, but he was not
called for this purpose to support the Claimant's assertions. (The
other employee was also present as a representative for still
another charged employee, but the hearing officer, at the outset of
the hearing, indicated his willingness to have the employee be
present in a dual capacity.)
The organization raises a significant procedural point to the
effect that the hearing was prejudiced. This contention concerned
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H-)
(0 8- C0N
the employee who had been cited by the claimant as a witness to the
alleged August 28 incident. That employee was also a "principal"
at the hearing. According to the Carrier, he had previously
advised carrier representatives of the Claimant's part in citing
him as a "witness" to the August 28 incident. There is credible
testimony to the effect that he had been assured prior to the
hearing that he would be assessed only a minimal penalty as a
result of the hearing, presumably in exchange for his testimony.
The Board finds that this procedural objection has merit to
the extent that testimony by the other employee should be
disregarded in assessing the results of the hearing. Nevertheless,
the Claimant's own admission is sufficient to support the Carrier's
action, particularly in connection with the failure to establish
proof concerning an alleged earlier event on August 21.
A W A R D
Claim denied.
HERB 714AR~X, Jr, Chairman and Neutral Member
MARK . S PAUL Em yee Member
D. J. ERRELL, Ca rier Member
NEW YORK, NY
DATED:/2~,(,,:~/
M q3
NATIONAL MEDIATION BOARD
PUBLIC LAW BOARD NO. 4768
BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES
and
BURLINGTON NORTHERN RAILWAY COMPANY
AWARD NO. 65
Carrier File No. 1MWB 91-03-25A
Organization File No. S-P-466-W
STATEMENT OF CLAIM
1. The dismissal of Laborer S. L. Humphries for
alleged violation of Rules 564, 575 and 580 "in connection with your alleged misappropriation of Burlington
Northern assets during the period of May, 1988 through
August, 1991" was arbitrary, on the basis of unproven
charges and in violation of the Agreoment.
2. The Claimant shall be returned to 'service with
seniority unimpaired as Machine Operator at Seattle,
Washington or be allowed to exercise seniority over any
junior employe in accordance with Rule 21 F of the effective Agreement. We further request that Claimant be paid
for all time lost and that he be allowed any and all
benefits of which he is presently being deprived including but not limited to health and welfare benefits,
vacation and personal leave qualification. We also
request that his personal record be cleared of any
reference to this discipline.
F I , N D I N G S
As a result of an investigative hearing on October 23, 1991,
the Claimant was dismissed from service by notice of letter dated
November 18, 1991.
As reported in Award No. 64, the Claimant was dismissed from
service on October 17, 1991 under an entirely separate charge.
This dismissal was upheld under Award No. 64. As a result of this,
consideration by the Board of the matter here under review would be
moot, and no action by the Board is appropriate.
A W A
R D
Claim dismissed.
HERBERT
L. MARXr
Jr Chairman and-Ne a~r
Xad
MARK ~T. S
PPAUGH, toy ember
D. . MERRELL,
/Carrier Member
NEW
YORK,
NY