NATIONAL MEDIATION BOARD PUBLIC LAW BOARD 6394
Urothc.•rhood of l\laintenaocc of Way Ilmplo)'es )
Division - urr Rail ConfcrC.'1\CC )
)
And )
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Norfolk Southcm Railway Company )
(Fonm:r Norfolk & Western Railway Company) )
Case No. 79
i\ ward No. 79
Richard K Hanft, Chairman and Neutral l\kmber
D. M. Pascarella, EmplO)'Cc l\fombcr
D. lh Kerby, Carrier Member
0
0
( :laim of the System Coniminee of the Brotherhood th.'lt:
'lhe Carrier's discipline (dismiici;al) of Mr. D. Papc.'sh, is11ued by Jetter elated Dc:cembcr 7, 2015, in cunnc:ction with his alleged improper pc.•rfnnmmcc of duty and conduct unbecoming an cmplorec in that. (J) he left Compan)• Vehicle (N5708514) unattcndc.-<l with the hood open in the Holiday Inn parking lot in Ddmonr, Pc.,1mcylvnnin, nt nrprnximawly 9:15 p.m. on October 2l, 2015; {2)
:1.lthou1,-.h be discovcn.·d a ruptured rndi:1tor hosein vchidc (N57085l 4) at thar rjrm:, he failed to notify supcn·ision or otherwise arrnnge for rc.'f)airs to hi11 assignc...J vehicle (N5708514) on October 21, 2015; (3) tn.'lrking off under false prctcnsc..'ll and foiling to protect his assi1,rnmcnr at the.· designated rime on October 22, 2015; 1mJ, (4) he falsific...J payroll by cfaimin full pay \Vhen )·ou were lntc in reportinv; to
)·our assignment wa11 arbitrary, capricious and unwarmnted (Carrier's File MW- CHAR-15-10-ME-tiKO NWRj. j
As n consequence of the violation rcfcrrc..-d to in Part 1 above, Claimant D. Papc11h 11hatl be reim1tatcd immc.'lliarcly, exonerated of all charges and compensat'--<l all lost wagc..'lt. including overtime.\ credits and benefits denied to him, commencing ( >ctober 26, 2015 until he is placed back in scn•icc or unril this mutter is resolved."
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FINDIN(;S:
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Public Law l oard 6394, upon the whole record and all ()frhe c.."V"iJcnce. finds and hol<.b that Em11Ioyec and Carrier arc cmplorc.'C 1and carrier within the meaning of the Railway J.abor Act, m1 amended; an<l. dun the Bminl ha11 jurisdiction over the
Public Law Hoard No. 6.W4
Award No. 79
dispute herein; and. that the parties ro the dispute were given due notice of the hearing thereon and did participate: therein.
This Award iii bas<.-<l on the facts and circumstancc.,c of this particular case and shall not SL't'VC as a prcced<.·nt i11 ltlt)' other cases.
After thoroughl)' rcvic.-wing and considcrittg the record and the partic.-s• presentations, the Huard finds that the claim should be dii--poscd of as follnw11:
Claimnnt. at the timc gi,•ing rise to the invesrig.uion had more than seven (7) years' iicrvicc with the Carrier and was working 8.11 an equipment mechanic on T & S 31 Gang. During the week October 19 - 22. 2015 Claimant's htang was working four (4) ten (lO) hour days, Monday ·nll'ough Thursday and the rc."Curd reflects workc...J 3.5 houn; overtime
on each day. Claimant, being an equipmenr mechanic. is assigm..-.<l a Currier service tnick that ha." tools and marerials stored onboard. (:laimant is permitted to use the truck for transportation to and from his lodging accommodations and the worksitc. Claimant pos11esses a CDL license and is subj<.'Ct to the Fcdeml l\lotur Carrier Safety Act while oper,1ring the Carrier's ,·chide.
After being rdc..-ased from the wnrkllite on \Vcdm.'!lday. October 21, 2015 between, according to Claimant's testimony at the in\'cstigatiun, 6:.,n and 7:00 p.m. while driving to
the hotel, Claimant dctcctl·d the faint odor of antifrc.'CZC in the truck's cab. llpon arriving at the hotel that the cr<.·w was <.1uartcrcd in. Claimant raised the truck's hood and noticed" k'l'lk in the truck's upper radiator hose. He left the truck's hood open and walked away.
Claimant testified that at that point he thought "I'll go get ck.-ancd up. h'Ct something to cat, lay down and then hl'l'f hold of ARI first thing in the monting."
l IV Ruic JH states in rch.-vant part that: "AU known details of the problem concerning a Jisabk-<l vehicle must be promptly repurccd by the driver to ARI for immc.-<liatl' assisrance and to the dri\'cr's suix•rvisor." Claitnant did not promprly report the leaking hose to ARI or hi" supcn•isor.
1\t about 9:30 that ,ame c..'\'enini,t. the record shows, Claim,'lnt's supcr\'isor arrived at the hotel, noticed Carricr'11 truck's hood opc..•n, tcxted Claimant to inquire why it was
<>l'>Cn and then went tn investigate the reason for himself. Upon disc<)\'ering the broken radfator hose. the supcr\'isor contact<..J ARI and arranged for the truck to be rc.1>aircd that evening. Repairs, the record rc,•cals, were complete by 1:00 11.m. the next morning.
Claimant arose on the morning of October 22. 2015 to his l!\l)lCl"\'iliOr's text mcsll:ag<.· inquiring 11bout the tnack's hood and replied that the truck had a broken hose.
Public J.aw Ho ml No. (1394
Award No. 79
At 4:38 a.m. Claimant'!! supc:rvisor responded to that text infonning Claimant that the truck had bc.-cn repaired and not to be late t(> wol'k. Cblimant arril'cd at the work site at 5:32 a.m.• half an hour late. He worked the rest of the shift and rctumcd home for the scheduled re11t period.
( )n the following MomJay Claimant wns held nt the hotel for a conference with the ( icneml Supervisor of Work I quipmcnr after which he was taken out of i1cn•icc. Claimant was iiuhsc.."luently 1mm1110ncd to an investigation and ch.ugcd with the fo11owing:
.. Your improper performance of duty and conduct unbecoming an c..mployce in that: (1) you left Compan}' \'chide (N5708514) unattended with the hood open in the Holiday Inn parking lot in Delmont. Penns}·lvania. at appmximatcly 9:15 p.m. on October
21. 2015; (2) although you discovered a ruptured mdintor hose in vehicle (N57U8514) iu that time, you failcd to notify supetvi!lion or nth1.·rwisc arrange for repairs to his as11igm'f.l vchidc (N5708514) on October 21, 2015; (3) mnrking off undc."f false prctcni1e11 and failing to prot1.'Ct his assi1,.mm1.•nt at the designated time on October 22, 2015; and,(4) you fali1ifi<.-d payroll by claiming full pay when you were late in reporting to your as.-.ignment.'•
After a full invci1rigario11, the hearing officer c.li.-imii1seJ counr four of the charge and foun<l Claimmlt guilt)• rui chaq.,,cd on counts one, two and three and dismisi1eJ him from i1en•icc.
The Boai-J finds that there wui1 liiUbstanrial 1."\•idenc..- on the t1.'Cord to support the finding that Claimant faik.J to promptly report the truck'11 condition to his 11upervii1or a11 required by Rule IIV 18 and that Claimant was mtc n.·porting for duty on October 22, 20 I 5 in vinhltion of S(;CR 919.
Strict compliance with Cimicr's operational rules is cssc."Oti:il to the safe and efficient operation of the workforce. (:tain1.'lnt"s d1.-cii1i011 to put off until the morning his duty to report the vehicle's disability amounts tc> 11cgliJ,>t.'Occ.-. but not occc11s:trily ,tn intent to diiihonestl)' get out of work.
The UoarJ finds no c"i<lence to i.\lpport the finding that Clnimnnt marked off under false pretenses.
'l1mi1. the Bonrc.l c.lC"termincs that the penalty of c.lismissal was exccs.,,;h•c and Jirc.'Ctll the Carrier to rc:ini1tatc Claimant, without rei1trictirn1i1 on hii1 scniorir,•. but without compensation for time out of sc..'tVicc.
Public ].aw Board No. 6.194
Award No. 79
Claim llulltriincJ in nccordnncc with the fim.linw;. Cnrrit.'1' i:1 dirt.-ctcd to make this Award effective wirhin rhirry Jays following the date that two ancmbcni of thi11 HoarJ affix their 11ignaturcs d1ercto.
D. M. Pa:.c:arclL'l, I mplnyc,: .Member Dat1..J at Chicago, Illinois,Janw1.ty 4, 2018
l), L Kerby, CarriL'l" Member