NATIONAL MEDIATION BOARD
PUBLIC LAW BOARD NO. 6302
AWARD NO. 220, (Case No. 232)
On July 12, 2011, Claimant was notified that he had been found guilty as charged and was assessed a Level 5 discipline and dismissed from service.
It is the Organization's position that Claimant was denied a "fair and impartial" Investigation because the Hearing Officer required the Claimant to testify before any other witnesses in an attempt to force him to testify against himself. Additionally, it argued that the Hearing Officer should have issued the discipline decision as he was better able to make credibility decisions than a third party who did not attend the Hearing. It stated that on the procedural errors alone the discipline should be set aside and the claim sustained without even reviewing the merits. If, however, the Board chose to address the merits it will discover the Carrier did not meet its burden of proof: It argued the Claimant had no intent to defraud the Carrier because he asked Manager Mumm permission to take the blocks and he maintained that Mumm gave him permission. It asserted that Mumm could not deny that he gave Claimant permission because he could not remember if he gave the Claimant permission or not. It further pointed out that it does not make sense that the Claimant would jeopardize his career for a few concrete blocks of nominal value that were not being used by the Carrier. It concluded the Claimant did nothing that was dishonest and it requested that the discipline be rescinded and the claim sustained as presented.
It is the position of the Carrier that Claimant, a Tie Gang Foreman, stole concrete blocks from South Morrill Yard, Nebraska, using a company vehicle on June $, 2011. It asserted Claimant drove the company vehicle home with the intent of using the concrete blocks for a personal home improvement project and that act of theft/dishonesty was a violation Rule 1.6 Conduct. It argued there is no doubt Claimant stole the concrete blocks as he admitted on pages 102 and 103 of the transcript he removed the blocks and did not have permission to take them. According to the Carrier that argument was verified by the testimony of Claimant's immediate Supervisor D. H. Booth who testified on pages 68 and 69 of the transcript he never gave Claimant permission to take the blocks and company truck home. The Carrier also addressed the Organization's procedural arguments and argued that Claimant was afforded all requisite elements of due process. It stated that the Organization's argument that the Claimant did not receive a "fair and impartial" Hearing because the Hearing Offcer allegedly attempted to depose the Claimant so that he would testify against himself before the other witnesses testified has P.L.B. No. 6302
no merit because there is no Agreement right that requires a specific order for the calling of witnesses. Additionally, it argued there is no Rule that mandates that the Hearing ()Nicer must render the discipline decision. Lastly, it argued that the discipline was appropriate and was in accordance with its disciplinary policy. It closed by asking that the discipline not be disturbed and the claim remain denied.
The Board has thoroughly reviewed the record and assessed the Organization's procedural argument 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.
his co-worker K. S. Bower, a Backhoe Operator, to help him remove concrete blocks off Carrier property in a company vehicle at South Morrill Yard, Nebraska, to his home in Kimball, Nebraska. Claimant was under the supervision of ARASA Supervisor D. H. Booth. There is no argument between the parties that the Claimant took Carrier material to his home. The question at issue is whether or not he had permission. The Corner argued that he did not have permission whereas the Organization asserted that he thought he had permission. The Organization further argued that the Carrier could not show the Claimant had an intent to defraud.
The Organization argued that a review of Manager of Special Projects, R. E. Mumm's testimony verifies that he could not recall whether or not Claimant had asked him for permission to remove the cinder blocks (See page 97 of the transcript). However, on that same page Mumm went on to testify as follows:
Mumm's testimony was not refuted that the material in question was not under his authority nor was it rebutted that if the material had been under his control he would have required the Claimant to have a permit before removing the material.
On pages 68 - 69 of the transcript Claimant's direct Supervisor testified that he never gave Claimant permission to take the concrete blocks home or that he had given the Claimant permission to take a company truck home. When asked at the Hearing if Claimant had any latitude in presuming he could take the truck home, Supervisor Booth stated on page 73 of the transcript "...no because I'm accessible to my phone. He can call my phone anytime."
It is clear from the aforementioned testimony that neither Carrier Officer gave Claimant permission to remove the blocks. On page 102 of the transcript the Claimant was asked if he had requested permission from his direct Supervisor to remove the blocks or use the company truck. He was questioned as follows:
Claimant confirmed in the testimony above that Supervisor Booth did not give him permission to remove the blocks and then on page 56 of the transcript Senior Special Agent R. E. Wilson testified that Mr. Bower, the Backhoe Operator who helped the Claimant move the cinder blocks told him when the Claimant saw Supervisor Booth's truck at the Gering Yard he told Bower they needed to leave before Booth saw them, or words to that effect. When Mr. Bower testified he did not refute Wilson's testimony and according to the Carrier that confirmed that Claimant knew he did not have permission to remove the blocks. Because Wilson's testimony was not effectively refuted it must stand as being factually correct. The totality of the record shows that substantial evidence was adduced at the Investigation that the Carrier met its burden of proof that Claimant was guilty as charged. P.L.I3. No. 6.302
The only issue remaining is whether the discipline was appropriate. At the time of the incident the Claimant had approximately 15 years of service with an unblemished record. Claimant committed a serious offense, but based upon the Claimant's years of good service, the Board finds and holds that the discipline was excessive and is reduced to a lengthy suspension, which is corrective in nature and in accordance with the Carrier's UPGRADE Discipline Policy. Claimant is to be reinstated to service with seniority intact, all benefits unimpaired, but with no back pay. Claimant is also forewarned that after reinstatement he needs to adhere to Carrier Rules and directives.
