Public Law Board No. 6402, 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.
The facts of the case indicate that Claimant was involved in an incident on October 5, 2010, wherein the Claimant was allegedly dishonest with two Bridge and Building Managers. Subsequently, the Claimant was charged with violation of Rule 1.6 Conduct - Part 4 (Dishonesty).
The Carrier offered the Claimant a Leniency Agreement dated October 21, 2010. The terms of the leniency required the Claimant to waive investigation and accept dismissal with the stipulation that Claimant would then be returned to Carrier's service with a discipline status of
Level 3 and Claimant would be subject to an 18 month probationary period. Paragraph 2 stated in pertinent part:
On March 9, 2011, the Claimant was involved in an incident with jacks on a bridge falling into the San Jacinto River. The Claimant called Manager of Bridge Maintenance C. Gust and made statements indicating the jacks had accidentally fallen whereas two co-workers allegedly provided different facts regarding the incident. The Carrier asserted that the Claimant was dishonest about the incident regarding the details of what occurred. At the time of the second incident the Claimant was still within his probationary period. As such, the Claimant was returned to dismissed status without the benefit of formal Hearing in accordance with the terms of his Waiver.
It is the position of the Organization that the Carrier did not meet its burden of proof because it did not show that Claimant was dishonest. It argued the record shows that the Claimant reported the fact that he accidentally bumped the jacks and knocked them into the water. It further argued for the Carrier's position to have any substance it would have to show that Claimant intentionally knocked the jacks into the water and then was dishonest when he reported that action. It concluded by requesting that the discipline be rescinded and the claim sustained as presented.
It is the Carrier's position that Claimant previously accepted dismissal for being dishonest regarding an incident on October 5, 2010, and then he was dishonest when recounting the events that occurred on March 9, 2011. It argued that Claimant's co-workers told a different story as to how the jacks fell into the river that proved the Claimant's dishonesty. It also argued that at no time during the on-property handling were those statements refuted or challenged nor did the Claimant submit a statement offering a different version of the event. Additionally, it stated that the Claimant failed to follow the directions of the job briefing and placed the gang in an unsafe condition. It closed by asking that the claim remain denied.
The Board has thoroughly reviewed the record and recognizes that the Organization offered various procedural arguments suggesting that the Claimant was denied "due process" , but the Board is not persuaded that Claimant was denied his "due process" Agreement rights, therefore, the dispute will be resolved on its merits.
Review of the record reveals a discrepancy in the parties files. The Carrier argued that the statements from Manager Gust and two of Claimant's co-workers were not refuted on the property and there were no statements submitted by the Claimant. The Carrier's file reflects that argument, as it contains no exhibits that refute the aforementioned statements nor does it contain any statement from the Claimant as to what transpired on March 9, 2011, whereas the Organization's file contains a rebuttal letter to Manager Gust's statement signed by the Claimant as well as a written statement from the Claimant regarding the incident. However, it is not clear that the Claimant submitted those statement to the Carrier. The Board has determined that Claimant's statements are "de novo" as there was no indication that they were exchanged between the parties.
The Carrier asserted that the Claimant was dishonest about what happened on March 9th. Manager Gust stated in pertinent part:
Carpenter M. McCarthy wrote in his statement the Claimant was driving the truck when it hit the jacks and the Claimant got out of the truck and told him the following:
Carpenter Harley Matthews offered an explanation of the incident in pertinent part as follows:
It is clear from the statements of Mr. McCarthy and Mr. Matthews that the Claimant was the first of the three employees to exit the truck after which he told his co-workers that he had accidentally bumped into the jacks and knocked them into the river. As previously mentioned Manager Gust stated that the Claimant told him "...he accidentally knocked a jack into the water below the bridge while working..." Gust said that Claimant's version was not reflective of what his co-workers stated, but he never explained how the Claimant's story differed. The Claimant clearly told McCarthy and Matthews that it was his fault that he bumped into the jacks and knocked them into the river with the truck. It is also evident that he told the Manager that he knocked the jacks into the river, however, the record gives no indication as to what his specific explanation for the accident was or how it differed from his co-workers version of the incident. The Carrier did not meet its burden of proof that the Claimant was dishonest or that he failed to accept responsibility for the accident of March 9, 2011, nor was there any showing that he did not meet the requirements of the Leniency Agreement dated October 21, 2010. Therefore, the Board finds and holds that the return of the Claimant to a dismissed status was in error and Claimant shall be reinstated to service at a Level 3 disciplinary status, with seniority intact and benefits unimpaired with full back pay in accordance with Rule 22(f) of the Agreement.
Claim sustained in accordance with the Findings and the Carrier is directed to make the Award effective on or before 30 days following the date the Award was signed.
