Brotherhood of l\fainteruuicc of Way f mploycs ) Division - ll\T Rail C:onfctcncc )
)
Anti )
)
Norfolk Southem Railwar Company )
(Fonner Norfolk & Wc."Stcm Rnihva)• Company) )
Case No. Hl 1\wnrd No. 81
Richard K Hanft, Chairman and Nt.'Utral Member
D. l\1. Pn.'ICarella, 1-mployec l\fcmbcr
D. 1- K<:"rby. Carrier l\fcmbcr
"Claim uf the Sy$tem C:ommitrcc of the Hrorhcrbood that:
t. The C11rrier's disciplinl' (dismis11aij of Mr. C. Perkimc, issuc..J by letter dat<.-J March 15, 201<>, in connection with his aUcgcd conduct unbecoming an cmplo)•e in that hl' submitted false payroll informari<>n on a number of occai1ion:, from Nm•embcr 23, 20l 5 to l.'ebruary 9, 2016 b)' entering allowances for meals am.I mileage that hl· wns nor entitled to rec1.-ivc, including but not limited to entl·ring MH milc:agc reimbursements on l\fondays, l'11tcring MM03 Dinner meal codc:1, i1ubmitring MH co<lc11 for eighty three (83) miles on multiple occasions when hi.,; reporting location changed numemu11 times between November 2.l. 2llJ5 ,md Fcbrunry 9. 2016 and entering an excessive number of iniks travek·d betWc.'\.'11 hi." reporting location and hi11 homl' addresi1 wa11 capricious, excessive, harsh, inappropriate and unwarranted (Carrier'11 File l\lW-DEAR-l<•-12-LM-173 NWR).
2. As a consc:qucnce of rhc violation rc.·fcrrcd to in Part I above.•, C:faimant C. Perkins sh:1ll be rctumcJ to service:. compensated for all ln11t rjinc anJ rcsrorc..J with all rightii and benefits."
FINDINGS:
Public J ..-..w Board 6394, upon the whole record and all of the e,-icJenct•, findi1 and holds thnt Employee and Carrier arc employee and carrfot within the mc."11ning of the Railway I.abut Act. as nml•ndcd; and. thnt the noartl has jurisdiction o,·er the dispute herein: nm.l. that the partici1 to the dispute were given due notice of the hearing thereon nnd did participate therein.
Public J..1w Hon.rd No. <,394
Award No. 81
'Ibis ,\ward is based on the facts and circumstances of this parricularcm1c:m<l 11hall not scivc as a r,rcceJcm in any other cases.
After thoroughly revk·wing and considering rhc record and the parties' presentations, the Boar<l find11 that the claitn should be: di.-.posed of as follows:
Claimant, at the time this matter took place. held a various hcadc.1uarrcre<l position
as a Dunbnr 'J'rncrnr:rrnilcr npcrnror a11signed to report at Tuledo. OH. He had over tc..'11
(10) ycani tenure at the rime of the occurrence in quesrinn.
,\s a \'ariuus headquartered Tractor-Trailer Operator. Claimant, because he traveled home c.·very Ja)'. was entitled under the current Agreement to an allowance for a lunch meal ead1 day. a rei1nbun1emcnt at the lll..\i rntc for actual mik'llge up to 120 miles, for the round trip home and back ench ,vorkday and a flat S30.0CI pa)metlt fur round trip trn"d bcrwc..'Cn work and home: m·er rest Jays.
Claimant, the e,·idencc on the record tf.'\'ealc<l, itubmittc<l rra,·cl and meal
rcimbun;c.•ment rc.-quc!o'tS thnt far cxcccdc<l that tu which he wa. entitled.
For instance. CL1imanr requested rcimbuniement for daily travel of cighty-rhrec
miles, round trip when the actual mik-agc from hill residence to the location of the
Tractor ·rrailer was rhirtya•onc (31) miles round trip.
While varimtt1 hcru.lquartcrc<l employees arc pcm1ittcd II flaMntc of S3fUK) travel pay to return home on rest periods, Claimant submitted requests for rcimbur.11.mcnts equal ro his daily 11ubmissions of cighry-thn-c milc.."!l round trip for rest rime travel.
Further, while the Claimant was entitled to a lunch meal for e,,cry day at work, he submittt.'t.l reimbursement cmlcs for dinner meals, which is gn..-ater than lunch meals.
This all occurred beginning on Nove1nber 2,, 2015 and continuing through 1:ebrunry 3, .201(1. On Februal'.')' 3, 2016 management hclc.l an operational ML-cting where Claimant's submissions where looked at. suspicion arose and Claimant•!! submis11ions were audited. On February 17, 201<> Claimant Wa!I chargL-d an<l directed to attend an hwcsrigation to "determine his rc11ponsibilitr. if any, in connection with conduct unbecoming an cmployc..-c in that he allegc..-<ltr submitted fnlsc payroll informnrion on a number of occasions from November 23, 2015 tn February 9, 201<i b)' cnrcringallmvanccs for fll'-'llls an<l mileage that he was not cnrideJ to rccc.•ivc. incluuing, but nor lirnitc<l to rhc following:
Entering MH l\lileagc Rcitnbu1iicmcms on Mon<lay:,i;
Entering I\IM03 Dinner Meal Codes;
.1. Submitting MH Codes for eighty-three (K3) miles on multiple occai.ions when his rcponing location ch11n1,>l!d numerous thnc. hl't\vc.-cn November 23, 2015 and February 9. 201<,; and.
Public J.aw Hoard No. 6394
Award No. 81
4. Entering an excc..;sivc number of miles trnwlcd between )'Our reporting location and pntr home address."
1' ftcr a full investigation. the.• Hearing ( )ffict..•r found C:Jaimat1f s.. ilty as charged and
dismissed Claimant from scn·icc.
'I be Or ani7.ation asserts that the Carrier's lliscipline cannot :itand based on procedural errors that it maintains should nullify the c.k'Cision reached during the handling of the matter on the property. 'lhc 011,l'8nization's complaints arc bast.-d on Rule .lO - Discipline and ( iriev:mcc.'ll, of the current Agn:.-cmcnt, thnt :mites in rcfo,·ant part:
Rule 30 (a) - An employee who ha11 been in scn·icc more than 11ixty (60) calendar <lay11 shall not he <lisdplincd or dismi..;sed without a fair and imp.'lrtial investigation, at which itwestiwition he may be as:iistcJ by July authorizc..'ll rcprc.-sentnth·es. He mar, however, be held nut uf sen•ice, except for minor offc..'llsc..11, pcm.Un such in,•c."Stih,ation.
'Ille I mplo)'<.'C will be given not less than ten (10) days advanced notice, in writin . of the J:ttc of the invcsti tion, which shall set forth the prcch1c c;ha11,1"Cs ah,ainst him, with a copy tu the general chairtnan. 'l'hc i,w<.'lltigation shall he heh.l within JU days of rhc first knowledge of the offen8c...
The ( )r1,.rn11izarion fir:it aven. that by taking Claimant out of service penc.ling an im•c:stigarion the Carrier prejuJ e<l Claimant. I foWt..'\'ct-. the last sentence of tlu.• first Paragraph of the nilc stated above cxplicitlr allowi. the Guricr to rcmm•c an emplorec from 11crdcc for :tH but minor offcn:ics.
I ial11ification of parroll information iK decidedly more than a minor offense.
N<.-xt, the Or nizadon purports that it was prcju<lice<l in representing Claimant by the Carrier's refusal to liharc documents anJ information in its posses:iion with the Organization prior to tht..• in\'csrigation.
There is nothing in Ruic .10, as amended hr tlw Srstcm Discipline Ruic, or in anr oth<.·r rule of the Agreement, that rcl.Juires tbc Carrier to impJ,ly Jocuments or other eddt:ntiary n,nttc.-r tu the ( )rj.,,anization prior to invc11d atiun.
"lnc ( )rgani:r.ation contends that the charges a inst Claimant were not preci-1c. As has previously been hdJ by Referee 1.ichcrman in .'l NRAB, 1'war<l 2l l1H. UR.AC v. NW, "the charge here gave Claimant notice that a pi1rticular incident was to he investif.,,ntcd and wn11 certainly adequate enough to cm,blc hitn to prepare hill defense."
I•inallr, the ( )11,,anizntion insists that the Carrier ,·io1atcc.l Jtutc 30 b)' not bringing cha11,l'(..-s against Claimant for pnyroH submissions tcnJerc.'ll in November and December. 2015 until Fcbruary, 2016. "J11c 011,tanizarion'N nfl,..'1.llllent has merit.
Public J..aw lfoard No. 6394
Award No. 81
The Carrier contends that it was not until 1mmn1-,rcmcnt hdd an opcrnrional nl"-"Cting on Fc:bru.'lry 3, 2016 that it became suspidmui of Claimant's rcimburscm1:nt submission!! and thar February 3, 2016 was the date that it haJ first knowlc:dt,>-c of an offense. 'J1,c charging officer in this matter, in fact, had knowlcdh,c of Claimant's rt•imburscmcm n.-..,ltcsts as they wc.•rc 1mbn1itwd in Novc.•mbcr and Dc.'Ccmbl.'r, 2015 because Ju• was tlw one who apprm•c.-d and pnid them. To say that he had no knowledge of what was submittc<l before the Febn111ry .l, :?.016 opcratiom1l meeting is Jisingc11uous and the Claimant's supcn•isor must share rcsponsihilit)' for allowing those payments without ,·critying their accuracy. It appc.-an to the Uoard that some of the problc:m could have hc.'Cn allt."•iat<.-d if Claimant had been instructed that he was entering the wrong payroll code11 for m<.-ab1 and tra,·d fur rc:,ir pcriodli at the.· time the submi...-.ion:. were made rather than wajting three month11 until the Carrier got around ru rc.'\·icwiug what it bad aln:udy had appm\'cd.
Nevcrrhdc.-ss, the chaq.,,cs invcstiwited ab10 pertained to submissions made for the datc.'ll of Jammr;· 14, 26, 27 and 28, when the.• Carrier's tmck was picked up and returned to Warren Yard in l\·lonroc, Ml, a distance of 15.5 mik"ll from Claimant's residence and for which Clnimant submittt.-d mileage of Lighty-three.• (83) milc.'ll mum.I trip. Erroneou!'I submi11:.ions for milc c and m<.-als were also submittc.-d for February 3. 4,.8. a1:i 9, 2m(,. 'l11us, the i1we1-tig.ition of th1.,ic submi1,,.-rions wu timdy itnd in accord with the Rule 30 time limitations. 1\-Iorc.•ov<.·r, the cvidcnc<.· presented during the invcstjwirion clc.'11rly provc.-d that Claim,'lnt submittc.--d faL-.e payroll information on an ongoing basis.
'11,e Board, howc,•er, t<."\'tcwing the record <levclop<.-d on the.• property detcnninc."S that this matter conccms not so much intcndt.-d dishonel'ity, hut mthcr complacency and gross nc.•glih,cncc. While the Hoard can rcluctat1tl)• concede that it is prn,sible that Claimant did not n-ali?.c that he was cnnl'ii11tcntlr ent<.·ring the wrong nlf..-:tl tcimbur..cmc."ttt code or th:u he was 1mppo11ed tn t·nwr a TZ co<lc rather than an MH code for travel to and fn,m home tJ\'cr rest periods. we omnor condone Claimant's submission of mileage amounts "guc.•sstimatcd" from hi."1 rcsic.knce to his Tokdo, Ohi<> reporting hcadlJU.'lrtcn at double the mih agc and rhnt he kept reporting the t'lttnte mik'Rs.,re when, in fact, hc had rclocatc.-d the truck to Monroe, Michi,-,,nn, c,•cn clc>M.'t' to hi.-. residence.
While the BuarJ finds that Claimant's fuhce payroll i.nfortn11rion submissions were made due to neglih,cncc n11d complacc.'1lc)' rather than intenriona\ dishonesty the (:arricr L'( directed to rcin!'itatc Claimant to scn·ic1.• without compensation for time: out of scn•ic::c. Further, Claimant shall forfeit his Foreman and As.-.istant Foreman seniority.
Public J.1.w UonrJ No. 6394
,\wnrd No. K1
C:bint su taincd in nccorJancc with the findint:,111. Carrier i. directed to make thi8 Award cffocti,•c within thirty Ja}'S following the date that two mcnthcrs of thi11 llnard affo their sij..rnatun:ii thereto.
J t,n, r:a-t....
DM. . Pa11earclla, Etnployc.-c Member D. J. Kerby, C.1rricr Member
Dntcd at Chicago, IUinnis,January 8, :?OlK
PageSofS