PUBLIC LAW BOARD NO. 6302
BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES )
Case No. 104
and )
Award No. 103
UNION PACIFIC RAILROAD COMPANY )
Martin H. Malin, Chairman & Neutral Member
D. D. Bartholomay, Employee Member
D. K. Peitzmeier, Carrier Member
Hearing Date: August 8, 2006
STATEMENT OF CLAIM:
1. The dismissal of Mr. Timothy M. Hecker for his alleged dishonesty in connection
with the use of the UP VISA Procurement Card ending September 30, 2004, was
without just and sufficient cause, in violation of the Agreement and based on
unproven charges (System File W-0548-152/1428451).
2. The Agreement was further violated when the Manager Labor Relations failed to
timely disallow the April 20, 2005 claim letter in accordance with Rule 49(a)(1).
3. As a consequence of the violations referred to in Parts (1) and/or (2) above, Mr.
Timothy M. Hecker shall now be returned to service with seniority and all other
rights unimpaired and he shall be compensated for all wage loss.
FINDINGS:
Public Law Board No. 6302, upon the whole record and all the evidence, finds and holds
that Employee and Carrier are employee and carrier within the meaning of the Railway Labor
Act, as amended; and, that the Board has jurisdiction over the dispute herein; and, that the parties
to the dispute were given due notice of the hearing thereon and did participate therein.
Claimant was employed as a Manager Track Maintenance, a position not covered by the
Agreement. On January 7, 2005, Carrier dismissed Claimant from service. By letter dated
January 9, 2005, Claimant advised Carrier that he had vacated an exempt position and wished to
exercise his seniority as an Agreement-covered employee pursuant to Agreement Rule 22(c)(2).
By letter dated January 15, 2005, Carrier notified Claimant to appear for an investigation on
February t, 2005. The notice alleged that Claimant exhibited unethical and possibly dishonest
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behavior in using
his position and his Visa Procurement Card for personal gain, by receiving
gratuities which resulted in Carrier being overcharged for railroad material that in some cases
Carrier did not receive during a period ending September 30, 2004. It further alleged that
Claimant was dishonest when interviewed by Railroad Police and Corporate Audit on October
22, 2004. Claimant was advised that he was withheld from service pending investigation. On
February 4, 2005, the Organization filed a claim alleging that Carrier had violated the Agreement
by not allowing Claimant to exercise his seniority rights after he vacated a non-Agreement
position. We denied this claim in Case No. 96, Award No. 102. The hearing on the January 15,
2005, charges was postponed to and held on February 10, 2005. On February 24, 2004, Claimant
was notified that he had been found guilty of the charges and dismissed from service. On April
20, 2005, the Organization filed a claim challenging Claimant's dismissal, the claim before this
Board in the instant case. The Manager Labor Relations denied the claim by letter dated July 18,
2005.
The Organization contends that the claim must be sustained because Carrier's denial was
issued more than sixty days following the filing of the claim. The Organization relies on Rule
49(a)(1). Carrier responds that the instant claim is a duplicate of the claim that we denied in
Case No. 94, Award No. 102. Thus, in Carrier's view, its untimely denial is irrelevant because
the claim is not proper. Carrier further urges that even if its denial was untimely, its late denial
tolled its liability for the procedural violation as of the date of the denial. Carrier argues that the
procedural violation does not entitle Claimant to be restored to service.
Initially, we address Carrier's argument that the instant claim is an improper duplicate of
the claim that came before us in Case No. 94, Award No. 102. That claim alleged a violation of
Rule 22(c)(2) when Carrier refused to allow Claimant to exercise his seniority to an Agreement
position following his dismissal from his non-Agreement position. The claim was filed after
notice of investigation had been issued but before the hearing was held. Carrier denied the claim
after the hearing was held and Claimant had been dismissed from any Agreement position.
Carrier's denial cited the notice, hearing and dismissal.
On April 20, 2005, the Organization filed the instant claim asking Carrier "to reconsider
the decision to dismiss Mr. T. M. Hecker. . ." The claim quoted Rule 22 in its entirety and
further claimed that Claimant did not receive a fair and impartial hearing. It further alleged that
Claimant was the victim of discriminatory discipline, argued that Carrier had the burden of
proving the charges and challenged Carrier to support its decision with specific evidence
contained in the hearing transcript.
The Organization appealed the denial of its first claim to the Director Labor Relations,
Non-Ops on May 13, 2005. The appeal reiterated the Organization's reliance on Rule 22 but also
alleged that "Carrier is admitting that a `hearing' was held just to appease previous wards (sic)
with no intention of conducting what would be considered a fair and impartial hearing. In other
words, the Carrier admittedly went through the motions just to address what might later be
procedural concerns." The appeal further argued that the hearing was not timely because it was
held more than thirty days after the incidents giving rise to Claimant's dismissal. The Director
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Labor Relations denied the appeal.
In so doing, he addressed not only the grounds for appeal
alleged by the Organization but also the Organization's attack on the dismissal following the
February 15 hearing. However, Carrier did not formally deny the claim in the instant case until
July 18, 2005.
From the above review, it is apparent that the second claim is not duplicative of the first
one. Rather, the first claim attacked Carrier's failure to allow Claimant to exercise his seniority
after he had been dismissed from his MTM position. It could not attack Claimant's dismissal
because his hearing had yet to be held. The instant claim attacked Claimant's dismissal.
Although it reiterated the arguments that had been raised in the first claim, it also went beyond
those arguments to focus on the dismissal. The second claim did not duplicate the first claim.
We observe that Claimant is one of a number of managers who were victimized by the
same group of con artists and, as a result, were dismissed from their managerial positions, sought
to exercise seniority to Agreement positions, were noticed for formal investigations and
dismissed from their Agreement positions following their hearings. Four such individuals were
before us in Case No. 90, Award No. 87 and Case No. 91, Award No. 88, and before Public Law
Board 6402 in Case No. 60, Award No. 39 and Case No. 61, Award No. 40. The Organization's
arguments largely rehash arguments considered and rejected in those cases. However, unlike
those cases, where the Organization presented a single claim on behalf of each employee, in the
instant case, the Organization chose to divide a single claim into two separate claims.
We have no idea why the Organization chose to do this. There is no explanation in the
record and we are at a loss to think of one. The Organization's actions created confusion which
appears to have contributed to Carrier's delay in responding formally to the claim in the instant
case.
The Organization argues that the Agreement mandates that we sustain the claim as
presented, i.e. reinstate Claimant to service with compensation for all lost wages, because of
Carrier's tardy denial. Carrier argues that at most we should award Claimant damages for lost
wages between the date he was withheld from service and the date of Carrier's denial. Both
parties cite authority for their positions. What is clear is that the Awards are in conflict as to
whether, as a general matter, a tardy denial results in a monetary award or in sustaining the claim
as presented.
Compare, e.g.
Third Division Award No. 26239 (supporting Carrier's position)
with, e.g.
Public Law Board No. 4544, Award No. 133 (supporting the Organization's position).
We need not choose between these conflicting lines of precedent as a general matter.
Rather, we resolve the issue solely as it relates to the peculiar circumstances presented in the
instant case. Specifically, we find that although Carrier's formal denial was tardy by several
weeks, it was not nonexistent. Furthermore, in the prior month, Carrier had communicated its
rejection of the bases for the claim, albeit in its denial of the Organization's appeal from Carrier's
denial of the first claim. Thus, although Carrier technically violated the Agreement with its
untimely denial, the Organization was on notice that its position had been considered and
rejected. Most significantly, as indicated above, Carrier's delay in issuing its formal denial was
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caused, in
part, by the confusion resulting from the Organization's inexplicable decision to divide
a single claim into two separate claims. Under the circumstances, it would be inappropriate to
allow the Organization to reap the benefit of the confusion it sowed by sustaining the claim as
presented with an Award of reinstatement with compensation for all lost wages. Instead, we find
that the appropriate remedy under the circumstances presented is to award payment of lost wages
for the period between the date Claimant was first held out of service and the date of Carrier's
denial of the claim. Any additional remedy is dependent on the substantive merits of the claim.
The Organization contends that the notice of charges and hearing were untimely because
they occurred more than thirty days following Carrier's knowledge of the alleged offenses. It
also contends that the discipline was inconsistent with Claimant's right under Rule 22(c)(2) to
exercise seniority and that the hearing was not fair and impartial because, having already
dismissed Claimant from service, it had prejudged Claimant's guilt.
The Organization's attacks on the timeliness of the notice and hearing, the alleged
violation of Rule 22 and the fairness of the hearing reiterate arguments that we have consistently
rejected in all of our prior awards arising out of the scams in which numerous MTMS were
caught up. We reaffirm those prior holdings.
The record reflects that Claimant violated numerous rules and policies with respect to his
use of his Visa Procurement Card. He purchased items that he should have ordered from
Carrier's Stores Department. His purchases were at prices greatly above the price obtainable
through the Stores Department. He received gratuities consisting of a jacket and several gift
cards to department stores and home improvement stores. He told the Regional Director of
Police and the Corporate Auditor that a particular charge to his Visa Procurement card was for
items he had never ordered but they secured a tape recording of Claimant confirming the order to
the vendor.
The crucial issue, in our view, is whether Carrier proved Claimant's dishonest intent by
substantial evidence. Claimant testified that he ordered some of the products to test them to see
if they would be superior to material already being used. In this regard, his testimony was
corroborated by the Director Track Maintenance, Claimant's immediate superior, who testified
that he encouraged Claimant to try new products. Claimant further testified that he continued to
order these products because they worked well. In this regard, his testimony was corroborated by
a Track Inspector who testified that the products were easier to use and made his job inspecting
switches easier to perform. On the other hand, Claimant never took any steps to recommend the
products to Carrier's Stores Department to approve for future purchases.
There is no evidence that Claimant personally benefitted from any of the improper
purchases. Claimant testified that he accepted the gift cards and the jacket to use as rewards to
give his subordinates. He maintained that he understood from the DTM that this was proper
because they were valued under $50.00. (None of the gift cards was for more than $35.00.)
Claimant testified that he gave one or two of the gift cards to subordinates at a safety recognition
dinner in January 2005 and that he received the others after the dinner and kept them in his desk
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Aoaat-cl 103
drawer to use later as safety rewards to his subordinate employees. Claimant's testimony in this
regard is corroborated by the Regional Director or Police who testified that Claimant produced
the jacket and remaining gift cards in a box. Carrier argues that Claimant produced no evidence
that he gave any subordinate employee a gift card, but this argument fails to recognize that it is
Carrier that has the burden of proof. Claimant told the Regional Director of Police of the safety
award dinner and of his giving the gift cards as recognition awards. Carrier could have
investigated further by questioning the employees who attended the dinner to determine whether
any had received gift cards as awards but apparently failed to do so. Claimant's testimony stands
unrebutted.
Claimant also maintained that the DTM approved of his receipt of the gift cards and use
of them as awards as long as they were valued under $50.00. The DTM did testify that he
approved of awards under $50.00 but it is not clear whether he approved of acceptance of
gratuities from vendors as long as they were under $50.00 and used as awards. In any event, the
crucial question would be whether Claimant honestly, albeit erroneously, believed that his taking
gratuities under $50 and using them to reward subordinate employees was permissible.
Claimant did tell the Regional Director of Police and the Corporate Auditor that his VISA
Procurement card was charged for items from Selectra Labs which he never ordered. The
Regional Director of Police, however, obtained from the vendor a tape recording of Claimant
confirming the order with the vendor's sales representative. Claimant's furnishing such false
information to Carrier's Police could support an inference of dishonest intent.
The evidence thus was conflicting with respect to Claimant's intent. Typically, when
faced with conflicting evidence of this nature, we defer to the findings made on the property. In
the instant case, however, we are unable to accord those findings such deference. The record
reveals that the hearing officer erroneously precluded Claimant from introducing evidence
concerning his intent. The hearing officer objected to Claimant's questioning of witnesses and
when Claimant offered that his questions were intended to illustrate his state of mind, the hearing
officer ruled that Claimant's state of mind was irrelevant to the caption of the investigation. In
support of his explanation of his statements to the Regional Director of Police that he had never
ordered items from Selectra, Claimant sought to introduce documentation of a medical or mental
condition that adversely affected his memory. The hearing officer refused to accept the exhibit,
ruling that it was irrelevant to the investigation. When Claimant explained, "Memory has a lot to
do with a person being dishonest .. . .", the hearing officer responded, "Not to my
understanding."
The hearing officer was clearly in error. Intent is a critical element of any charge of
dishonesty and state of mind and state of memory are plainly relevant to the question of intent.
The hearing officer's erroneous evidentiary rulings have denied this Board a complete record on
which to determine whether Carrier proved Claimant's dishonest intent. In light of the closeness
of the evidence in the record and the hearing officer's erroneously limiting the record, we are
unable to say that Carrier proved Claimant's dishonest intent by substantial evidence.
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Claimant had 27 years of service at the time of his dismissal. In prior awards, we have
held that the lengthy tenure of other claimants who were caught up in this scam did not mitigate
against the severity of their offenses. We reasoned:
[T]he Board has no authority to grant leniency. The Board may only disturb the penalty if
it is arbitrary, capricious or excessive. Given the very serious nature of the offense and
the magnitude of the offense, we are unable to find that the penalty was arbitrary,
capricious or excessive. Accordingly, we lack authority to disturb it in any way.
In all of the other cases, however, Carrier proved the claimants' dishonest intent and
Carrier proved that they personally benefitted from the scam. Carrier failed to prove either in the
instant case. In the absence of proof of personal gain and dishonest intent, we hold that the
penalty of dismissal was excessive. Claimant shall be returned to service with seniority
unimpaired but without compensation for time held out of service except that Carrier shall
compensate Claimant for time held out of service prior to July 18, 2005, because of its tardy
denial of the claim.
AWARD
Claim sustained in accordance with the Findings.
ORDER
The Board, having determined that an award favorable to Claimant be made, hereby
orders the Carrier to make the award effective within thirty (30) days following the date two
members of the Board affix their signatures hereto
Martin H. Malin, Chairman
D. K. Peitzmeier, D. . tholomay, - 7
:N
Carrieremb Employee Member
Dated at Chicago, Illinois, Decemberl8, 2006