NATIONAL fEDIATION BOi\RD PUBLIC Li\W BOARD NO. 6394


Brotherhood of Maintenance

of Way Employcs Division- IBT Rail Conference


and


CaseNo: 80

Award No: 80


Norfolk Southern Railway Company

(Former Norfolk & Western Railway Company)


Richard K. Hanft, Chairman and Neutral Member

D. M. Pascarella, Employee Member

D. L. Kerby, Carrier Member



STA'I'EMJ.:.:NT OF CLAIM:

Hearing Date: December 14, 2017


"Claim of the System Committee of the Brotherhood that:


  1. The Carrier's discipline (dismissal) of Mr. M. Fife, issued by letter dated March 31, 2016, in connection with his alleged conduct unbecoming an employe in that he submitted false payroll Information on his Norfolk Southern Explanation of Travel Expense Forms for travel allowance reimbursements on numerous occasions since October 29, 2015 and also obtained another employe's fuel receipts without authorization and used those receipts in a cfaim for his own travel allo\vance on numerous occasions since December 10, 2015 was arbitrary, capticious and unwarranted (Carrier's l''ile MW-ATLA-16-14- SG-185 NWR).


  2. As a consequence of the violation referred to in Part 1 above, Claimant M. Fife shall be reinstated immediately, exonerated of all charges and compensated all lost wages, including overtime, credits and benefits denied to him, commencing February '18, 2016 until he is placed back in service or until this matter is tesolved:'


FINDINGS:


Public Law Board No. 6394, upon the whole record and all of the evidence, finds and holds that Employee and Carrier arc employee and canier within the meaning of the Railway J.abor Act, as amended; and, that the Boa.rd has jurisdiction over the dispute herein; and, that the parties to the dispute were given due notice of the hca1fog thereon and <lid participate therein.


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Public J.aw Uoard No. <>394

Award No. 80


'Ibis Award is hascd on rhe facts :mc.J circumstances of this particular case and sh.111 not !l"-"t\"e as a prc."C<.-<lent in an)' other case.


ln 2015, Claimant in this matter held the position of Foreman un Carrier's Dcs4,rnnted Program Maintenance Gang 1' & S 31. As a ,rarioul'I heac.Jqu:1rtercc.J cn1ploy1..-c, Claimant was cnritl<:d ro Weekly Trnvcl Allowance ("TA'j to anc.J fmm his residence <>f cc.-cord in Holiclay, Morie.la during rest pcriod-i. Because thar round trip was appruxin1atcl)' 1,100 miles, Carrier instructed Clnimant and one orher emplo)•ec on thc gang making a similar round trip for rest periods to submit gas receipts with their 'l'r:n·cl Reimbursement Rc.'l(UCllt Forms.


Ueginning in 2014 and through mi<l-( )ctober 2015, Claimant and his C(Mvorkcr car-poolcc.J to and from their homes to the job in J>enns}·h·ania and shared the cxpcnse11. In L'lte October, 2015 personal circumstances cnuscd the two cmploye(.'S tu C(.-asc riding together and they began submitting separnte inc.Jh,idual Tmvcl Rcimbur.t«.:mcnt tc.'l(Uesrs.


h

h

Claimant, in November 2015, llCJ.,>aO turning in Norfolk Southc.•rn E.. plamaion of Travel Expense FonnN reflecting travel not to his hom(.• in Florida, but rather to Marinn, Ohio. 'lbc>11c fon11N wc..-rc not procc1111cd by the Gang Supcrvi:mr a11 tr:wcl allowance i-i onlr for travd tu and from the rc.:11idcnce of record. Claimant further tendered Travel Rcimburscmcnr Requests for rhe r<.-st periods

h

h

of December 41

- 7•h and December Ht" - 141

that were 11hniL1rly not proccs."lc.'tl bec:n111C there ,vcrc

no w•s receipts accumpaoying thcnl.


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'

In January, 2016 Clai11111nt began working on a different 1-,rang, Carrier's Designated Program J\faintcnancc Gang T & S·R Clairrmnr compL1ined to the Organizarion about nor being rcimburllCd for the rest period from lkccmbc.·r 10'1 - 14"' and on Februnry 2, 20t 6 his r<.')lrcsentativc fik'tl a rime dnim on his. behalf with the C.·micr'11 General Dhrision Enginc.-cr.


( )n Fdm1ary 17, 2016, rhc record reflects, th tt same General Divi ion Enginc(.'f ("GDE") w11s approached at a training se11sion by C:taimmu's fonner c:tr-pooling partner who cxprc..-sscd


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Puhlic J ..aw Hoard No. 6394

,\ward No. 80


concerns that his g-t1.s receipts were being ui.cd by another cmploy(.-c. llpon further review of the concern brought to his attention, the (;mer.ti Division Engineer Ji,;;covercd that the Time Claim submitted by the Claimant's rcprcsentntivccontained receipts that were not the Claimant's, hut instead

\Vere rccdpts with the other employt.-c's nan'!.(.• and credit card numbers. Morco\"er, the Gem.-ml Division Engineer also found that Claimant, in his position as Forcnum for Gang T & S-31 had accc.<111 to the ,1..tang office car where expense forms and J.,1311 receipts submitted by the othc.·r employc.-c were ston.'tl and that Clain,ant had submitted trnvd reimbursement forms in Nc)\•embcr, 2015 for travel not to home but tn Ohio.


Claimant was summoned by letter datt.-d February 2J. 2016 to an investit,-ation cm !\larch 14, 21116 iu connection with: Conduct unbecoming an employee in that he (1) submim.>d false payroll information on his Norfolk Southern Tra,•cl Hxpc..'1lse forms for tra,·cl rcimbur.1cmcnts on numcrom1

<>CC.'tsions since October 29, 2015; and, (2) that he obtained - - -'s fuel receipt'!! without authori:.r.ation and used those rcccipt11 in a claim for hi11 own travd allo\Vance on numerous occmdons since Dc..'Cember 10. 201 .


111c hearing officer founJ Claimant guilty as dmrgc..-d and he wns dismissc..-d from service by letter <lntcd March 31, 2016.


'l11e Organization claims that the Carrier ,·iolateu CL'limnnt's due procc.."Ns rights whc..'!l it faik-d

to attach the exhihit11 intro<luct.-d <lm-ing the 1nvcstigntion to the transcript submitted to the

< )r1,,-ani1.atlon thereby dc..-priving it of the use of the c.•xhibits in the prosecution of its claim and appc.-als. Mort.·over, the Organi:1.ation carps that th" Carrier refused to shnrc information with it prior to the im'(."lltigation.


Additionally, with regard to due pruct."Ns ,,iulations, the Oq.,,anization im,i.,;;ts thnt Carrier fatally violated the Agreement becau11e it Jid not hold a timely investigation within thirty (30) days of its first knowled,.....: of a possible offcnl'l4!,


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Public Law Board No. 6394

Award No. 80


Finally, the Organization argues that the discipline imposed, dismissal, was arbitrary and unwarranted. The Organization points out that Claimant is a forty (40) year veteran with no demonstrated, fully upheld prior discipline. The Organization opines that Claitnant should have first been h,iven a verbal warning and then a non-disciplinary letter of counseling before any discipline was assessed.


In response to the Organization's first due process argument that the Carrier failed to attach exhibits introduced at the investigation to the transcript submitted to the Organization, the Carrier points out that those exhibits were provided to the Organization when they were introduced at the investigation. Regarding the Organization's complaint that Carrier provided no "discovery", the Carrier points to three (3) Awards: 3 NRAB, Award 16308, BRT v. CMSt. P & P (Ives), 2 NRAI\ Award 12971, !BEW' v. CNW (Yost) and PLB 5763, Award 4, BRC v. CSC (Hicks) that stand for the proposition that the Claimant is not deprived of any cnntractual rights by the Cauier's failure or refusal to furnish a list of witnesses or documents to he used in the investigation barring any Agteemcnt provisions requiring discovery procedures.


In regard to the Organization's rin1eli11ess of prosecution argument, Carrier explains that Claimant had his Union Representative file a time claim on his behalf by letter dated February 2, 2016. However, the Carrier submits, there was no reason to suspect that there was any rule violation until the Claimant's co-worker brought his concerns to the General Division Engineer's attention at the February 171h training session. Once the Carrier started looking into the situation concerning the co­ worker's receipts, suspicion arose with the Claimant's time claim. Six days after being "tipped off" by the co-worker, on February 17, 2016, Carrier summoned Claimant to an investigation that was held on March 14, 2(l16, all within the thirty (.30) days of its first knowledge piqued by the co-worker's conversation with the GDE and well within the thirty (30) days required by rule.


In light of all of the evidence on the record and the Parties' respective atgumcnts the Boatd concludes that Cbimant's dismissal must stand. Violations such as those proven here, which involve dishonesty are extremely serious and warrant a most severe penalty. Based on the record

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Public J.1w Hoard Nn. 6394

Award No.80


before us, Wt' cannot My rhnt tlw dismi:; I wm1 arhitrnry. unjust nr umuppurtcd by rhc record. Mori..-ovcr, Claimant was affurth.:d all procedural due process rights .1,,rt.1:irnntcc<l by the L1nion conrrnct. H(.'11CC, we c.·m finu no bai;ill to l1Ulltni11 the claim.


1\wart.I:

The cL,im is dcnk-d.


Richard K Hanft. Chnirm.'ln


D, I\·!. Pascardfa, Employ<.-c Mc.mbcr


DatcJ nt Chic.1go, lllinoi-1,Janua1y 6, 2018


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