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.
On January 27, 2011, Carrier notified Claimant to appear for a formal Investigation on February 16, 2011, which was mutually postponed until March 25, 2011, concerning in pertinent part the following charge:
Carrier in other locations} or in areas where no work was ever assigned, scheduled or performed. Between October 7 and 9, 2010, Claimant spent over $2000 when he purchased 72 gallons of gas, despite having no work entries or exceptions listed for pending work. Fuel transaction documents indicate that Claimant fueled up after his western journey in St. Joseph, Missouri, (which is near his home) on October 7. The documents indicate he fueled the vehicle again on October 8th in Eldon, Missouri, (Lake of the Ozarks) and again on October 9, in St. Joseph. The Carrier pointed out that it does not have a railroad track at Lake of the Ozarks, nor any equipment or structures that Claimant could work on. It argued the Claimant's explanations were not logical nor convincing and the fuel records and work list do support the Claimant's version of events. It closed by stating that Claimant was dishonest when he utilized the Company vehicle for personal use and when he falsified payroll for the date of October 8, 2010, and because of that it asked that the discipline not be disturbed and the claim remain denied.
The Board will first address the assertion that the Claimant was denied a "fair and impartial" Investigation because he was allegedly prevented from presenting a defense that would have shown that the Hearing was called in retaliation for a prior on-duty injury. Review of the transcript reveals that on pages 45 and 46 Claimant questioned the Manager of Maintenance of Way Equipment Operations, Mr. J. F. Hendricks about an injury and was advised by the Hearing Officer that the Investigation was not about injuries. Claimant responded by stating "Okay" and dropped that line of questioning. Claimant never voiced an objection nor did he suggest that the Hearing Officer had prevented him from presenting a plausible defense that might have shown that the instant case was tied to a previous incident and the Investigation had been called in retaliation account of the prior matter. Failure by the Claimant to object or explain to the Hearing Officer why he should have been allowed to continue to question Officer Hendricks about a prior injury and its pertinence to the instant dispute indicates he accepted the Hearing Officer's ruling and leaves no basis for the Board to examine the question of whether or not the Claimant was improperly cutoff from exploring an alternate defense. The Organization's and Claimant's closing statement that the Investigation had been called in retaliation of Claimant's injury lacks foundation as there was no substantive showing that the Investigation was called in retaliation for an on-duty injury.
The Organization also argued that the Claimant was denied a fair Hearing because he was not given access to his personal notes and/or records regarding his daily activities that he had input into the Carrier's computer system. It asserted that if he had been given that access he would have been able to solidify his defense as to what his day to day activities had been. The Carrier countered the Organization's argument by stating that it provided the Claimant and his representative all documentation it intended to use against the Claimant and they were afforded the opportunity to review the information. It further argued that when the Board reviewed the transcript and evidence presented it would discover that the Claimant was purposely evasive in his answers, however, it suggested that in one instance he inferred that he knew he was guilty of P.L.B. No. 5302
some misconduct when he offered a curious answer to a question on page 79 of the transcript wherein he stated the following:
At first blush the Organization's argument is not without some appeal, but in this instance after careful review of the entire record the Board is not persuaded that the Claimant was "blindsided" or that his defense was impeded and/or hindered by the Carrier.
The Board has thoroughly reviewed the record and determined that the Claimant received a "fair and Impartial" Hearing and was afforded his Agreement "due process" rights, therefore, the dispute will be resolved on its merits.
There is no dispute between the parties that the Claimant set his own scheduling, worked irregular hours and days and was headquartered out of his home while under the direct supervision of Manager of Maintenance of Way Equipment Operations J. F. Hendricks.
The facts indicate that a vehicle usage audit was conducted on January 18, 2011, which revealed Claimant spent over $200 between October 7 and 9, 2010, when he purchased 72 gallons of gas during which time he had no work entries or exceptions listed for pending work. In an e-mail from the Claimant to Manager Hendricks on October 4th, Claimant advised he was finishing his western repair journey and would return to his office (home) on October 5th. Fuel transaction documents indicate Claimant purchased fuel after the aforementioned trip in St. Joseph, Missouri, which is near his home, on October 7, 2010. The evidence her indicates Claimant fueled the vehicle again on October 8th in Eldon, Missouri, (Lake of the Ozarks) and again on October 9, in St. Joseph. Additionally, the record reveals the Carrier does not have a railroad track at Lake of Ozarks, nor any equipment or structures that needed Claimant's service.
On page 19 of the transcript Manager, J. F. Hendricks testified regarding a conversation he had with the Claimant in pertinent part as follows:
At the Hearing, Claimant testifed as to why he was in the recreational area towns of Eldon and Osage Beach on October 8th. He stated that he had intended to look at some equipment in Southeastern Missouri on October 8, using an alternative route that took him towards the Southwestern part of the State after which he tamed directly east in the middle of the state near the Lake of the Ozarks. The Carrier argued that the Claimant's explanation was not logical when maps of the various states are examined in conjunction with its rail lines and facilities. The Carrier's rebuttal was not effectively refuted.
The evidence further reveals that on October I lth, Claimant sent an e-mail to Carrier Manager's Hendricks, Dooley and Sealey that stated he would be repairing equipment in Iowa and Illinois (Transcript Exhibit B, page 116). He explained he would be in his office on Monday and then on the road the rest of the week. Transcript Exhibit B, pages 117 and 118 established the Claimant had work (exceptions) to resolve in Iowa and Illinois, however, the fuel records do not show that the Claimant was in either state. Instead fuel documents substantiate that between October 12 and 15, the Claimant remained in the St. Joseph, Missouri, area where there were no machines in either St. Joseph or Kansas City in need of repair. During that time period Claimant purchased 74 plus gallons of fuel costing approximately $200 in St. Joseph. The time stamps for each of these transactions occurred in the late morning when the Carrier asserted the Claimant should have been well into his work day at locations other than his hometown.
In his defense, Claimant suggested he performed work in State Center, Iowa, which is approximately 222 miles from his hometown and Dolton, Illinois, which is approximately 485 miles from his headquarters. The Claimant's argument is not persuasive because there were no fuel transaction log or receipts of fuel purchase in either Iowa or Illinois during that time period. The Claimant argued there must have been a glitch in the fuel audit system that did not record his fuel transactions and he must have misplaced his receipts. Assuming for the sake of argument that the Claimant made the trip to Iowa and Illinois that does not explain how he put fuel in his company vehicle on three out of four days in his hometown when he was allegedly out of state. Claimant's explanation was not persuasive.
On October 16, 2010, Claimant's rest day he had multiple fuel purchases in Iowa and Illinois, which substantiated that Claimant went to those locations a week later than he told his Supervisors he was going to go. The Carrier raised the question that if the Claimant did not go out of state until October 16th then what necessitated him purchasing nearly 74 gallons of fuel while at his hometown location. When the Claimant was questioned about those fuel purchases he could not recall (See Transcript pages 78 and 94).
On page 21 of the transcript, Manager Hendricks testified as to what he had told the Claimant to do during the month of November as follows:
Mr. Hendricks testimony was not effectively refuted and the record her substantiates that at no time did the Claimant ever advise his superiors of any change in his planned work schedule and the fuel records and work lists are contrary to his version of the events covered by the Notice of Investigation. Substantial evidence was adduced at the Investigation that the Claimant improperly used a company vehicle for personal use on multiple days and entered an inaccurate payroll for the date of October $, 2010. However, we are not convinced that he knowingly entered a falsified payroll with intent to defraud the Carrier of monies.
The only issue remaining is whether the discipline was appropriate. At the time of the incident Claimant had 31 years plus service with an unblemished record during which time he was nominated for three World Class Employee Awards and won two. Claimant's committed several serious infractions and the Board does not excuse or condone his actions, but believes in this instance dismissal is excessive. The Board finds and holds that the dismissal is reduced to lengthy suspension which is corrective in nature and in accordance with the Carrier's UPGRADE Discipline Policy. Claimant will be reinstated to service with seniority intact and all benefits unimpaired with no back-pay on a "Last Chance" basis. The Board also forewarns the Claimant that he needs to follow all Rules, instructions and directives upon reinstatement.
P.L.B. No. 6302
LABOR MEMBER'S DISSENTA dissent is required in this case because the Majority failed to apply the clear terms of Rule 48 which mandate that an employe be given a fair and impartial investigation prior to the Carrier imposing any discipline. While the Carrier conducted an investigation in this instance, that investigation was neither fair nor impartial because the Carrier did not provide all relevant evidence in connection with the charges at hand. Instead, the Carrier cherry picked the evidence it wanted to present and flat out refused to supply additional relevant evidence requested by the Organization and Claimant. The Carrier's actions in this case were contrary to any sense of fairness or impartiality and the Majority's failure to apply the clear language to the straightforward facts of this case was unmistakably wrong. Thus, I must register a vigorous dissent.
The Organization made multiple requests prior to the investigation for specific evidence and made multiple objections during the formal investigation in connection with the Carrier's refusal to supply specific evidence. Those objections were carried forward throughout the onproperty handling of the case. In light of the fair and impartial hearing requirement, there was no reasonable basis for the Carrier to refuse to produce the evidence requested by the Organization and it was contrary to the basic concepts of fairness that the Carrier did not provide that evidence for the formal investigation. It is well established by decades of award precedent that in disciplinary proceedings the Carrier is required to develop all relevant facts in connection with the charges it has filed against an employe. Here that meant the Carrier had an obligation to produce the Claimant's daily work reports, payroll and other documentation that was kept in connection with the Claimant's assigned duties for the Carrier. After all, the Claimant's day-to-day duties were what were being investigated by the Carrier. The fact that the Organization had to request this evidence shows the Carrier was disinterested in developing all the facts, and the fact that the Carrier refused to supply the evidence when requested by the Organization unequivocally establishes the Carrier violated the Claimants right to a fair and impartial hearing.
There is no question that the evidence withheld by the Carrier was: (1) requested by the Organization and Claimant; (2) directly relevant to charges issued by the Corner; and (3) in the Carrier's sole possession. These facts are best conveyed by citing the transcript wherein the hearing officer acknowledges the relevance of the requested information because he specifically asks the Claimant to provide supporting documentation outlining his daily activities. The Claimant answered the Hearing Officer's questions by stating that said documentation was in fact available but was being withheld by the Corner. The pertinent part of the transcript (Tr.PP.76&77) reads: Labor Member's Dissent To
The language involved here is clear and unambiguous. Rule 48 of the Agreement provides that an employe will not be dismissed or otherwise disciplined until after being accorded a fair and impartial hearing. Given that withholding relevant evidence cannot be reconciled with the basic terms of fairness and impartiality, the Board should have overturned the discipline and sustained the claim based on these facts and the plain Agreement language. But, the Organization also cited Award precedent in support of its position. The Organization's submission cited two (2) thoroughly reasoned Public Law Board Awards (PLB) (Award 43 of PLB No. 5392 and Award 2 of PLB No. 6699) one of which addressed the general expectations of the fair and impartial hearing requirement and the other addressing the propriety of a Carrier's withholding of evidence under a provision requiring a fair and impartial hearing prior to discharge. Award 43 of PLB No. 5392 involved Union Pacific and, in pertinent part, held:
Labor Member's Dissent To
investigation, but instead the Carrier refused to provide the evidence at the investigation. In other words, the Carrier prevented the evidence from being entered in the record. Despite the plain agreement language, the straightforward facts of this case and the well-reasoned award support, the Majority still managed to reach findings that stood in direct conflict with the basic concepts of fairness and impartiality required of the clear terms of Rule 48. The Majority's finding in connection with the Carrier's withholding of evidence consists of a single sentence void of any meaningful rationale and, in pertinent part, reads:
It is inconceivable that the Carrier can withhold relevant evidence and still provide a fair and impartial investigation to "develop the facts" as stated by the Carrier's notification of investigation.
Labor Member's Dissent To