NATIONAL MEDIATION BOARD
PUBLIC LAW BOARD NO. 4979
BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES
and
NATIONAL RAILROAD PASSENGER CORPORATION
AWARD NO. 40
Case No. 40
System Docket No. BMWE-269D
STATEMENT OF CLAIM
(a) Carrier's dismissal of Claimant Justin Macera
was without just and sufficient cause, was not based on
any clear and probative evidence and was done in an arbitrary and capricious manner, wholly beyond the Scope of
the Scheduled Agreement.
(b) Claimant Macera shall be reinstated into
carrier's service with all seniority entitlements and
shall be compensated for all lost wages, including overtime benefits which would accrue to him, as provided for
in Rule 15 of the Scheduled Agreement.
FINDINGS
The Claimant was subject to an investigative hearing in
connection with the following charge:
To determine your responsibility, if any, in that it
is alleged that on April 19, 1996 at approximately 1:00
p.m., you utilized Company equipment (dump truck,
trailer, and backhoe) to perform non-Company related work
at the personal residence of Amtrak Passenger Engineer
Larry Macera, while on duty and under pay by the Company.
It is alleged that you attempted to cover up your
wrongdoing by saying that the trailer sustained a flat
tire enroute to the Rensselaer Facility.
Additionally, it is alleged that the backhoe sustained damage to the hydraulic hose during the performance of this work at the Macera residence, and also
became stuck in the landscaping at that location. This
necessitated payment of overtime to other employees to
repair and free the equipment.
It is further alleged that the performance of this
work was premeditated, and that you engaged in deception
in order to ensure the availability of yourself and the
equipment when you told your foreman that you needed to
leave work early to catch a train. As such, you were
allowed to leave the work site at 12:00 (noon) in order
to return and service the equipment at the M/W Facility.
Following the hearing, the Claimant was dismissed from service
on May 9, 19_96. A fellow employee was also charged and involved in
the investigative hearing; his participation is reviewed in Award
No. 41.
The Board cannot accept the Claimant's belated explanation
that he simply went to his father's home for lunch and then
encountered difficulty in turning the truck around to leave, in the
meantime taking the backhoe off the trailer and moving it to the
rear of the house. Indeed, the Claimant had prepared a written
statement prior to the hearing which stated he had gone to his
father's house for lunch, taking the equipment with him. The
statement continued:
I asked the operator of the backhoe to dig a hole in
the yard for drainage. He agreed and we proceeded to
dig. Just before we were finished a hydraulic hose blew.
The organization argues that proof is lacking that work was
actually performed with the backhoe. Even if this is the case,
-2-
qq-~q -L(o
surely the intention to use Company equipment for personal purposes
was clear.
The misuse of Company time and equipment is readily perceived
as a most serious offense. There are no mitigating factors involved here, and the Board has no basis to question the Carrier's
judgment as to the imposition of the dismissal penalty.
A W A R D
Claim denied.
HERBERT L. MARX, Jr., Chairman and eutr1 Member
"B. A. WINTER, Employee Member
W. H. R BINSON, Jxl Carrier Member
NEW YORK, N / (/Y
DATED:
9_16 _ J`