PUBLIC LAW BOARD NO. 5850
(Brotherhood of Maintenance
of Way
Employee
PARTIES TO DISPUTE:
(The Burlington Northern Santa Fe Railroad (Former
(ATSF Railway Company)
STATEMENT OF CLAIM:
1. The Carrier violated the Agreement on January 3, 2005, when it
Dismissed the Claimant, Mr. T. E. Muhr, from service for failing to
report for duty and falsification
of
payroll records on October 12,
and 13, 2004, in violation of Rules 1.5 and 1.5 of the Maintenance of
Way Operating Rules.
2. As a consequence of the violation referred to In part (1), the Carrier
shall immediately restore the Claimant to service, remove any
mention of this Incident from his personal record, and make him
whole for all wages.
FINDINGS
Upon the whole record and all the evidence, the Board finds that the parties
herein are carrier and employee within the meaning
of
the Raihvay Labor Act, as
amended. Further, the Board is duly constituted by Agreement, has jurisdiction of the
Parties and of the subject matter, and the Parties to this dispute were given due notice of
the hearing thereon.
On October 29, 2004, the Carrier wrote Claimant, certified mail, return receipt
requested, the following which is quoted in part:
"Attend formal investigation ...on Friday, November 5, 2004, at 2:00
PM, with your representative and witness(es),
If
desired, to develop the
facts and place responsibility, if any, in connection with possible violation
of Rules 1.9 and 1.15 of the Maintenance of Way Operating
Rules ...concerninp your alleged failure to report for duty on October 12
and 13, 2004, and your alleged falsification of payroll records on October
12 and 13, 2004, while employed as a Grapple Truck Driver on the
fLB
140
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Cam No. 271
Southwest Division.
You will remain withheld from service pending results of this
investigation."
The Investigation was postponed until December 7, 2004, in a November 8, 2004,
letter directed to Claimant, again sent certified, return receipt requested.
On December 7, the investigation eras convened with the Carrier representatives
and the Organization's Representative, but without Claimant
The Representative testified he had attempted more than once to contact Claimant
and even searched the premises for Claimant, all without success.
The Representative compared signatures on the two return receipts for the
certified letters sent Claimant and was satisfied the signatures on both receipts were
identical.
To this Board, it Is clear that Claimant was fully aware of the tine, date and place
of the Investigation but chose to be absent
Claimant does have the right to avoid the Investigation if he chooses, but such
avoidance leaves standing ail facts relating to the charges as presented by Carrier
witnesses.
The Board thus finds that the Carrier has furnished sufficient evidence that
established Claimant's culpability for the charges assessed. The discipline of dismissal
will not be disturbed.
AWARD
Claim denied.
ORDER
This Board, after consideration of the dispute identified above, hereby orders that
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5850
Page 3 Award No.
Case No. 271
an award favorable to the Claimants) not be made.
i~Rbert L. Hicks, Chairmn Member
Rick
B. Wehdl,
Labor Member William L. Yeck, Carrier Me r
Dated: