PUBLIC LAW BOARD NO. 5850
Award No.
Case No. 296
(Brotherhood of Maintenance of Way Employes
PARTIES.TQ DISPtj!TE;
(The Burlington Northern Santa Fe Railroad (Former
(ATSF RaWwy Company)
STATCMENT OF CLAIM
:
1. The Carrier violated the Agreement on September 20, 2005 when
Claimant, J. J. Johnson, was dismissed for violation of Maintenance of
Way Operating Rules 1.6-Conduct and 1.19-Care of Property, when
Claimant used Company vehicle for personal use without permission
on June 30, 2005; and improper clakn for weekend travel allowance for
the weekend beginning July 1, 2005 through July 5, 2005.
2. The Carrier violated the Agreement on September 20, 2005 when
Cleknant, J. J. Johnson, was dismissed for violation of Maintenance of
Way Operating Rules 1.B-Conduct and 1.15-0uty-Reporting
of
Absence, when Claimant was absent without authority on July 1, 2005
and paid himself an unauthorized personal leave day for July 1, 2005,
and holiday pay for July 4, 2005 for which he did not qualify.
3. As a consequence of the violations referred to In parts 1, 2, and 3, the
Carrier shall Immediately return the Claimant to service with sonWrtty,
vacation and all other rights restored, remove any mention
of
this
incident from his personal record, and make him whole for all tine lost
beginning September 20, 2005 forward.
FIHQWA
Upon the whole record and ail the evidence, the Board finds that the parties
herein era Carrier and Employee within the meaning of the Railway Labor Act, a·
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.
Claimant was cited in two letters for two separate violations. The Investigations
were piggy-backed, one following the other. Both letters wens dated July 21, 2005. TM
91, fd tic). SS
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Page 2 Award No.
Cass No. 288
first Investigation explored the falling:
"...to develop the facts and place responsibility, ff any, in connection with
possible violation of Rules 1.8, 1.13 and 1.15 of Maintenance of Way
Operating Rules, effective October 31, 2006, as supplemented or amended,
concerning your alleged absence without proper authority on July 1, 2005,
your alleged claim for personal leave day when not authorised on July 1,
2005, and your allageft claiming holiday pay when not entitled for July 4,
2005, while employed as Welding Foreman at Ash Fork, Arlmna."
The second Investigation explored do following. -
"...to develop the facts and place responsibility, ff any, in connection with
possible violation of Rulas 1.8, 1.13 and 1.19 of Maintenance of Way
Operating Rules, effective October 31, 2004, as suppiernenled or amended,
concerning your alleged use of company vehicle for personal use on July
30, 2008, and your allegedly claiming weekend mileage when not entitled
on July 2 and 3, 2005 while employed as Welling Foreman
at
Ash Fork,
Arizona."
The first Investigation developed that Claimant called his Supervisor about 10:30
PM on June 30, 2006, stating its would not be at work on July 1, 2004, because he wows In
jail.
The next contact was 12:00 noon on July 1, 2005, with Clahnent advising he was
out of jail and on his way walking home. Claimant advised the company truck was at his
home with the keys at the police headquarters.
Shortly after the 4th of July, the Carrier received a lip on its hot line which was
being monitored by the internal Auditors which did lead to finding Clalment claiming a
personal day on July 1, 2006, and pay for July
4,
2006.
Claknant's Supervisor was definite that M the Iota hour on June 30, when Claimant
first called the Supervisor ha did not grant Claimant the right to ciain July 1, 2005, as a
personal day specifically because Claimant was unavailable for service because of being
in jail. The fact that the Supervisor would have refused to grant Claimant's personal
PLlb
Nb.
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Page 3 Award No.
Case No. 288
day's pay while he was in jail is supported by numerous Boards that have supported
unauthorized absence charges due to an Individual being In jail. But, again, Claimant did
not request a personal day.
It (s clear that Claimant did Improperly claim pay to which he was not erNilled to.
To claim tine for which you are not entitled to is fraud. Claimant was not authorized by
any Supervisor to claim July 1, 2005, as a personal day to mcelve pay for the workday
before July 4 in order to qusKy for holiday pay.
To the satisfaction of this Board, the Carrier furnished sufficient evidence of
Claimants culpebAty for the charges assessed in the first Investigation. Under to
circumstances, the discipline of dismissal is upheld.
The discipline of dismissal in the first case renders the second Investigation moot,
although the Board does find Claimant used a company vehicle without authorisation but
the evidence of Claimant falsely claimed mileage was questionable.
AWARp
Claim denied.
ORDER
This Board, after consideration of the dispute Identified above, hereby orders hurt
an award favorable to the Clalmxnt(s) not ire made.
Robert L Nicks, Chairman & Neutral Member
David D. Tanner, Labor Member Samantha ~ogers, Can' r r
Dated: /(/`~C~