PUBLIC LAW BOARD
NO. 6192
PARTIES TO DiSPUTE7 Brotherhood of Maintenance of Way Employes
and
Burlington Northern Santa Fe Railway
(Former St Louis - San Francisco Railway Company)
STATFM N OF CLAIM-
"Claim of the System Committee of the Brotherhood that:
1. The Carrier violated the Agreement when on December 6, 1999, Mr. J. J.
Mitchell was dismissed from service for allegedly providing false information
on a Weekend Home Travel Allowance Form seeking reimbursement for miles
not traveled for the weekend of October 9 and ID, 1999, allegedly in violation
of=Maintenance of Way Safety Rule 1.6, Conduct.
2. As a consequence of the Carrier's violation referred to in part (1) above,
the discipline shall be removed from the Claimant's personal record, he shall
be returned to service with seniority rights unimpaired and he shall be compen-
sated for all wages lost in accordance with the Agreement." [Carrier's File 12- _
00026. Organization's File B-1524-6.]
FINDINGS AND OPINION:
Upon the whole record and all the evidence, the Board finds that the Cagier and
Employees ("Parties") herein are respectively carrier and employees within the meaning of
the Railway Labor Act, as amended, and that this Board is duly constituted by agreement and
has jurisdiction over the dispute herein.
There is a multi-employer agreement between the Brotherhood of Maintenance of Way
Employes and various carriers, including the Burlington Northern Santa Fe Railway, referred
to in the record as "the 1996
BMfVE
National Agreement." Article XIV of that Agreement,
captioned "Travel Allowance," is central to this dispute, and will be referred to as "Article
XIV" in this Award. Article XIV reads as follows:
"ARTI . )UV - TRAVEL ALLOWANC
Section I
(a) At the beginning of the work season employees are required to
travel from their homes to the initial reporting location, and at the end of the
season they will return home. This location could be hundreds of miles from
their residences. During the work season the carriers' service ma
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hundreds of miles away from home at the end of each work week- Accordingly, the carriers will pay each employee a minimum travel allowance as follows
for all miles actually travelled by the most direct highway route for each round
trip:
0 to 100 miles $ 0.00
101 to
200
miles $25.00
201
to 300 miles $50.00
301 to 400 miles $75.00
401 to 500 miles $100.00
Additional
$25.00
payments for each 100 mile increments.
(b) At the start up and break up of a gang, an allowance will be paid
after 50 miles, with a payment of
$12.50
for the mileage between
51
and 100
miles.
(c) Carriers may provide bus transportation for employees to their
home area on weekends. Employees need not elect this option.
Section
2 -
For employees required to work over 400 miles from their residences
the carrier shall provide, and these employees shall have the option of electing,
an air transportation package to enable these employees to return to their
families once every three weeks. Ground transportation from the work site to
the away from home airport shall be provided by each carrier, and on the
return trip the carrier shall provide ground transportation from the away from
home airport to the lodging site. In dealing with programmed work, the
employees and the carrier may know how long the employees will be required
to work beyond the 400 mile range, and the employer can require the employees to give advanced notice of their intention to elect the air transportation
option so that the carrier may take advantage of discounted air fares. Employees must make themselves available for work on at least ninety percent of the
regularly scheduled work days during the three week period. And, they will
not qualify for the travel allowance set forth in Section 1 during the three week
period. Irrespective of the customary meal and lodging entitlement that
employees have under their local agreements, when employees elect the air
transportation option, they shall be entitled to meals and lodging during the
two away-from-home weekends in the three-week cycle and they shall not be
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entitled to meals and lodging during the third weekend upon which they return
home by air transportation.
Section 3
Nothing herein shall he construed to bar the parties from reaching
mutual agreement on alternative arrangements.
Section 4
This Article shall become effective ten (10) days after the date of this
Agreement except on such carriers
where the
organization representative may
elect to preserve existing rules or practices pertaining to travel allowances by
nopfication to the authorized carrier representative." -
The Claimant, Mr. J. J. Mitchell, was, at the time of his dismissal,
employed as
Foreman on Regional Tie Renewal Gang TP02, working at or in the vicinity of Kirksville,
Missouri. According to his personal record, he was employed in 1974 as
a
trackman, and
promoted to Foreman in 1996. His record of discipline prior to the instant case shows a
censure in 1991 for failure to comply with instructions in his responsibility for releasing a tie
gang at 12 noon and recording their payroll as having worked a full eight hours. In 1998, he
received a deferred suspension for not wearing proper
safety glasses
while on duty.
On the weekend of October 8-10, 1999, the Claimant was under surveillance by the
Carrier's police officers, in response to a request by the Carrier's Internal Auditor, who
suspected the Claimant had submitted false claims for weekend travel to and from his home.
Their surveillance included examination of his personal vehicle's odometer on Thursday
night, October 7, and Monday morning, October -11, which indicated his vehicle was driven
566 miles during that time interval.
For the weekend of October 8-10, 1999, the Claimant submitted a "Travel Home
Allowance Log Sheet," which contains the following printed wording:
"One round trip per line. An employee claiming Travel Allowance under
Article XIV of the 1996 HMWE National Agreement certifies that the mileage
claimed is a true and accurate report of all miles actually traveled by the most
direct highway route for each round trip."
The Claimant recorded his claimed mileage as follows: On October 8, Kirksville, Missouri
to Beaufort, North Carolina, 1075 miles. On October 10, Beaufort, North Carolina to
Kirksville, Missouri, 1075 miles. Total miles claimed, 2150. Below this recorded trip, there
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Public Law Board No. 6102 Award No. 17
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appears on the log sheet this printed certification: "1 certify the mileage stated above is a true
and accurate report of actual highway mileage traveled by me." The Claimant printed and
signed his name in the spaces provided therefor.
On October 20, 1999, the Carrier's Division Engineer sent the Claimant a notice of
formal investigation to be held on October 29, 1999, on the following charge: "(F)or the
purpose of ascertaining the facts and determining your responsibility, if any, in connection
with your alleged failure to give factual information related to your weekend mileage and
reimbursement miles claimed on reimbursement form for weekend home travel for the
weekend of October 9 and 10, 1999 . . . . You are being withheld from service pending
results of this investigation." The investigation was twice postponed, by mural agreement,
and finally held on November 24, 1999.
There is little, if any, dispute as to the Claimant's movements on the subject weekend,
from his own account and the facts which were obtained from the police officers' surveillance
and further investigation. The combined accounts indicate that he left the Carrier's place of
lodging in Kirksville, Missouri, about 3:30 p.m., Friday, October 8, driving his personallyowned vehicle. He stopped in Macon, Missouri to deliver some cookie pans to a baker. He
continued to Mountain Grove, Missouri, where he experienced alternator trouble. He
borrowed a friend's automobile, leaving his own vehicle to be repaired. He then drove to
Clinton, Tennessee, where he visited his parents' grave site. He continued to Cherokee,
North Carolina, where he spent the balance of his time at a casino. There was also a side
trip to Asheville, North Carolina, either enroute to or from Cherokee. He slept in the vehicle
at a rest area, he said.
On October 10, 1999, he drove back to Mountain Grove, where he paid his friend
$100 for the use of the borrowed vehicle. He recovered his own automobile, which had been
repaired, and drove back to Kirksville.
The round trip mileage from Kirksville to Cherokee and return, using the circuitous
route described by the Claimant, is approximately 1980 miles, according to a computergenerated route provided by the Conducting Officer, not counting the side trip to Asheville.
Following the investigation, on December 6, 1999, the Claimant was advised of his
dismissal from the Carrier's service:
"This letter will confirm that as a result of our formal investigation on November 24, 1999, concerning you giving false information on weekend home travel
allowance form and reimbursement claimed for weekend October 9 and 10,
1999, you are dismissed from employment for violation of weekend travel
home policy and Maintenance of Way Safety Rule 1.6, Conduct."
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Maintenance of Way Operating Rule 1.6, captioned-"Conduct," reads as follows:
"Employees must not be:
I. Careless of the safety of themselves or others.
2. Negligent.
3. Insubordinate.
4. Dishonest.
5. Immoral.
6. Quarrelsome. Or
7. Discourteous."
Initially, this Board observes that the Claimant executed a document certifying that his
reported travel from Kirksville to Beaufort, and return, was a true and accurate report. The
verb "certify" means "To authenticate or vouch for a thing in writing. To attest as being true
or as represented."
(Black's Law Dictionary, Sixth Edition). Webster's New World Dictionary of the American Language, Second College Edition,
goes into greater detail in its first
entry for the word: "1. to declare (a thing) true, accurate, certain, etc- by formal statement,
often in writing; verify; attest." Clearly, the Claimant's certification on the Travel Home
Allowance Log Sheet, quoted on pages 3-4 herein, was by his own admission incorrect. For
that reason alone, he made himself subject to discipline, pursuant to Maintenance of Way
Operating Rule 1.6.
The Claimant offers some extenuation, which bears consideration. This Board would
be reaching outside its jurisdiction were we to attempt to interpret Article XIV. Nevertheless, the meaning and application of Article XIV are implicated in the Claimant's exculpatory
account of the basis for his mileage claim. The following questions and answers from the
investigation transcript disclose some arguable interpretive issues about Article XIV's
application, at least in the Claimant's mind:
"13. Q.[By Conducting Officer] What, what is the procedure for an
individual that is on, let's say your gang TP02, to account for
and collect what's due to them in accordance with this agree
ment, with respect to weekend home travel allowances?
A. [By Carrier's Roadmaster BainterJ Individual would be required
to check out of the motel for the weekend and go home, not to
exceed the milage to his home station.
***
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41. Q. [By Claimant's Representative] Mr. Bainter, Exhibit 5, from
the national agree[went], what, has your gang presented with a
copy of that before today?
A. No, sir, they have not.
42. Q. Mr. Bainter, your interpretation of this Article XX1V (sic), the
way you understood it to apply. What it, you didn't have to gQ
home, just as long as you made a trip and it didn't incur addi
tional mileage to your home. Was this what you understood the
agreement the way you intemreted, that ;iust as Long, as you
check out of the motel- and made a trip, as long as it wasn't
beyond your mileage. if ;you would go home. that you'd be
entitled to it?
,A. That'd be correct.
**x
54. Q. Since you been working for the railroad are you familiar with
people filing claims or have you ever filed a claim for rule
violations?
A. I am familiar with it, yes sir.
55. Q. So, is it your understanding that whenever you have a difference
interpretation of an agreement that the procedure is that you
have to file a claim and handle it through the Railway Labor
Act, is this correct?
A. That is correct.
56. Q.
Would you be, would you consider this a matter of what Mr.
Mitchell's involved here, would be just a matter of interpretation
of the agreement?
A. That's would be an opinionated question but I, I would have to
say, yes it may be a misconstruence [sic] of the interpreta
tion.
57. Q. I
mean, what you told me a while ago, you was intemreting that
you wouldn't have to make, necessarily make the trip hue. that
you cold -just, you've made a trip
h
you'd be entitled to
the per diem. I mean this m_ilage allowance?
A. Not to exceed. not to exceed the mileage to vomr, home.
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Public Law Board No. 6102 Award No. 17
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***
66. Q. [By Conducting Officer] Okay. You said it was, it was your
belief or opinion in, that somebody or an individual was entitled
to all the mileage that it would have taken to travel to their
home, whether they actually traveled it or not, as long as it did
not exceed the, the miles that it would take to travel home and
back'?
A. No. Mileage, mileage to their home not to exceed the, the
mileage to their home station.
67. Q Okay. Well, maybe 1 misunderstood that, let's try and clarify
that a bit. If an individual lives in a certain town. That is, let's
say a round trip from the work sight [sic] of a 1,000 miles, is it
your belief or do you think the intent of this was to allow that
person to go anywhere he wanted and still claim those miles? If
he went 50 miles from the work sight [sic] and came back 50
miles and only traveled a 100 miles, is he still entitled to the full
1,000 miles of reimbursement?
A. No.
68. Q. As a, as a roadmaster on that particular tie gang, do your duties
require you to be around the people quite a bit?
A. Constantly.
69. Q. Has members of the crew and Mr. Mitchell, in particular, asked
you any questions to clarify this rule to make sure that they had
a clear understanding?
A. Not to my knowledge.
70. Q. Did you ever tell members of your crew or anyone that all they
had to do was check out of the hotel and not collect weekend
expenses at the hotel and they would be entitled to or be able to
collect all the miles that it would have taken them to drive home
and back?
A. No.
x**
72. Q. [By Claimant's Representative] Prior to Mr. Mitchell being
removed from service, if I understood you right a while ago, if
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Public Law Board No.
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an employee checked out of the motel and if he wanted to go
spend the weekend with his aunt or uncle, whatever there and
didn't, didn't actually make the
trip
to his home. For instance,
a 1,000 mile
trip
to his home and he only incurred 500 miles he
would be entitled to the
500
miles and not the 1,000, is this
correct?
A. No.
73. Q.
I thought I understood you, that he wouldn't have to go home.
He just wouldn't be able to draw any excess miles if he went
somewhere else. If I checked out this weekend and rather than
going home I'd go to my aunt's house
500
miles away rather
than a 1,000 miles. I understood you to say a while ago that I
t
would be entitled to the
500
but not anything beyond my home.
A. Well then I must have misunderstood the question.
74. Q.
Well, did you answer the question that I would be entitled to the
full mileage to home?
A. 1 have to ask that you ask the question again?
75. Q.
Okay. I'm asking if I checked out of the motel, and as long as I
made a trip and if it wasn't beyond the mileage to my home, I
would be entitled to that
trip?
A. No.
76. Q.
That's not what you answered to start with in the investigation.
A. Then I apolog-izg I must have misunderstood the g uc ion.
***
189. Q. [By Conducting Officer] I guess I would like to ask a couple of
questions trying to clarify how you perceive this, this agree
ment? The travel home policy, could you explain to me how
you believe that, that's suppose to work?
A [By Claimant] The way I was told three years ago by a road
master was, if you check out of the motel you can, and whatever
you drive, that's what you claim. It didn't say, he never said
you had to go home and anything like that.
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Public Law Board No. 6102 Award No. 17
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190. Q. So...
A. And me and John, I talked to John, and John had told me that
same thing, John Bainter.
***
244. Q. (By Conducting Officer) We received testimony here a few
minutes ago from Mr. Mitchell. And Mr. Mitchell stated, that
you had told him that he could claim travel miles to go any
where that was not his home. He could go to other places
besides his home and still claim miles, as long as those miles do
not exceed the miles that he would have incurred traveling
home. Is that a true statement or not?
A. [By Roadmaster Bainter] I don't recall having that conversation,
no.
***
246. Q. [By Claimant] All right. John, that on day I asked. I said, my
understanding is that I can check out the motel and claim miles,
is that correct, and you, I said, 'Is that the way you understand
that?' And you said, 'Yes', is that correct?
A. I, I don't recall." [Underscoring added for emphasis].
The picture that is painted by these responses reflects an understanding by the
Claimant that he could travel on the weekend to some point short of his residence, and be
paid the mileage allowance therefor, so long as the mileage didn't exceed that to his residence. Significantly, the Roadmaster initially agreed with that understanding, although he
recanted when questioned further by the Conducting Officer.
True enough, Article JkIV's clear intent is to provide reimbursement for travel
between a work site and an employee's place of residence, which may be "hundreds of
miles." The Claimant's predicament arises from questions of equity in interpreting Article
XIV, questions not indisputably answered in the record. For example, suppose an employee
traveled 475 miles from the work site toward his residence 500 miles away, meeting his
spouse at that intermediate point for a family reunion. Would he be denied
a
the 950-mile
round trip to the intermediate point because he did not reach his residence?
Or, suppose he met his spouse for the weekend at a resort 500 miles from the work
site, but did not stop at his place of residence while enroute. Would be be denied all the
500-mile round trip because he did not reach his residence?
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Public Law Board No. 6102 Award No. 17
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Of course, this Board does not have the answers to those questions, nor are we
privileged to supply the answers. Neither the Carrier not the Organization have provided this
Board with any interpretive arbitral decisions or agreed-upon interpretations of Article XIV.
But the Claimant's expressed understanding, with which the Carrier's Roadmaster initially
concurred, indicates the Claimant understood he was not required to travel to his residence to
be entitled to the mileage allowance. However, the Board is not unmindful that even if his
understanding were correct, he did claim mileage in excess of that actually traveled.
If the issue is the proper application and interpretation of Article XIV, the General
Chairman's appeal letter dated January 6, 2000, raises a va1W question:
"From the date the Weekend Travel Allowance went into effect,
October 1996, the carrier had a different interpretation of the agreement than
the organization. The carrier interpreted the Travel Allowance to only apply to
P.E_B. gangs. Our interpretation was that it applied to all mobile gangs.
Claims were submitted for the mileage. The carrier refused to pay them and
denied the claims. They did not dismiss anyone from service.
"The carrier should have handled Mr. Mitchell's claim in the same
manner. Also, if the carrier's interpretation was that Mr. Mitchell was not
entitled to his claim, why did they pay the claim when they had the right to
deny it?"
This Board recognizes that the Carrier could have and ¢id treat the matter as a
criminal act.` It could have and "i handle it as a disciplinary proceeding. However, as the
General Chairman points out, it could have but did not address the issue as a claim, which it
could have denied. The interpretive issue could thus have been joined without the trauma and
monetary loss arising from the Claimant's dismissal. In this Board's view, a 25-year
employee with a record of two minor disciplinary entries merited less severe corrective
treatment, notwithstanding his dishonest act in claiming mileage which he did not travel.
The Board's ruminations on this case lead to the following conclusions. Because there
is a probability that the Claimant believed that he could claim the weekend travel allowance
for travel to and from a destination other than his place of residence, so long as he checked
out of Carrier-provided lodging and did not claim away-from-home expenses, and did not
exceed the mileage actually traveled or the mileage to and from his residence, his permanent
dismissal is excessive. The testimony of the Roadmaster was not unequivocal with respect to
'Probably the police officers' surveillance, investigation, arid interrogation were
necessary to develop all the facts in this matter.
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Public Law Board No.
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Case No. 18
such weekend travel. See his responses to Q. & A.
42
and
57,
above, compared with his
later reversal in Q. Xc A.
67, 72, 73,
and
76.
"Well, then 1 must have misunderstood the
question." The Board cannot rule out the possibility, if not a probability, that there was
some kind of informal interpretation of the weekend travel agreement which led to this result.
Having concluded flat permanent dismissal is not warranted, however, the Claimant
should not be rewarded for falsely certifying that he traveled
2150
miles to and from his
home, miles not actually driven as he certified. The Board perceives the purpose of Article
XIV as reimbursement for the cost of actual travel to and from the employee's place of
residence at the end of the work week, because such employees are often required to work at
transient work sites distant from their places of residence. Article XIV is, therefore, a
reimbursement rule, not to be abused with false mileage claims. The Claimant's dismissal
shall be converted to a lengthy suspension. He shall be returned to service with seniority
unimpaired, but without compensation for wages lost.
The Board finds there was compliance with the applicable provisions of Schedule Rule
91, the Discipline Rule. Substantial evidence was adduced at the investigation to prove the
charges made. Permanent dismissal is excessive, in light of all the matters discussed above.
AWARD
Claim sustained in accordance with the Opinion. The Claimant shall be offered
reinstatement to service within forty-five
(45)
days from the date of this Award.
Q&j
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Date
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