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.
On August 5, 2011, Claimant was directed to attend a formal Investigation on August 11, 2011, which was mutually postponed until September 7, 2011, concerning in pertinent part the following charge:
On September 27, 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 the Claimant was denied a "fair and impartial" Investigation because the charges were vague and untimely. Additionally, he was denied the opportunity to secure his duly authorized representative to attend the Carrier's interview which was nothing more than an investigation held prior to the formalized Investigation. It argued that the Claimant was denied the opportunity to face his accusers as the Investigation was held in "absentia" despite the fact that the parties did not know if he might have been ill, hurt or worse. It asserted there was no reason to go ahead with the Investigation and that it should have been postponed. It her argued that because of those 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 because the evidence was circumstantial and based upon hearsay. It concluded by requesting that the discipline be rescinded and the claim sustained as presented.
It is the position of the Carrier that the record shows that there were no procedural errors and the Claimant's Investigation and the investigative process was "fair and impartial". It asserted that it was not improper to hold the Investigation in "absentia" because of the un-refuted testimony of Director P. Kreifels who explained that the Claimant called him on the day of the Investigation to inquire about a one day postponement as he was allegedly in Rockford, Illinois. On the same date the Claimant also called his representative and told him he was in Fein, Louisiana, at a funeral for his deceased aunt. Kreifels her testified that he called the Claimant back after talking to his representative and at that time the Claimant said he thought he was in Rockford, Illinois, but discovered he was in Fein, Louisiana. Carrier researched and found no records or obit notice that could validate the death of Claimant's aunt. It reasoned the Claimant of his own choosing did not appear for the Hearing. Turning to the merits it argued that the evidence was overwhelmingly clear that the Claimant used his company fuel card and pin number to purchase fuel for himself. It her argued that contrary to the Organization attempts to argue that perhaps the Claimant's PIN was used by someone else; the record was substantiated by Carrier Officer A. J. Rose on pages 58 and 59 of the transcript that the hundreds of purchases made between 2008 and 2010 with four fuel cards and four different locations
were at the exact time the Claimant had access to the cards due to his assignment, thus, the Carrier concluded that the Claimant dishonestly made the purchases. It closed by asking that the discipline not be disturbed and the claim remain denied.
The Board will first address the Organization's procedural arguments. It initially argued that the Claimant was denied a "fair and impartial" Investigation because the Hearing was held in "absentia". On point with the instant case is Award No. 186 of this Board wherein it was determined as follows:
The question at issue in this case as it was in the aforementioned case is whether or not the Claimant had a justifiable reason for not appearing at the Investigation. The record reveals that the Claimant was originally directed to attend a formal Investigation on August 11, 2011, that was mutually postponed until September 7, 2011. The record substantiates that the Claimant knew when the Investigation was scheduled because he called Director Kreifels shortly before the start of the Hearing requesting an additional postponement telling Kreifels in his first conversation that he was in Rockford, Illinois, and in a second return call made by Director Kreifels the Claimant corrected his location to that of Franklin, Louisiana. The Board finds it odd that the Claimant did not know where he was at during the first telephone call, but giving him the benefit of doubt that he had a legitimate reason for not knowing where he was, a review of a 2011 calendar shows that September 7, 2011 (the day of the formal Investigation) was a Thursday, when Claimant's Aunt's funeral allegedly occurred. Claimant never offered any substantive proof that her funeral was held on that day or that he attended, nor did he give any reason why he could not have notified the Carrier prior to the Hearing date that he wanted to P.L.B. No. 6402
attend the funeral as he clearly would have known when the funeral was going to be held and whether or not it might conflict with his attendance at the Investigation. The Board has determined that the Claimant made the choice not to appear at the Investigation and offered no proof that he had a legitimate reason for not attending, therefore, the Carrier's decision to hold the Investigation in absentia was not in error.
The Organization also argued that the Claimant should have been allowed a Union representative during the interview that took place on August 3, 2011. The record indicates the interview on August 3rd was an interview and not a formal Investigation and there is no Agreement right that guarantees union representation during an interview of that nature. Nonetheless, on pages 73 - 74 of the transcript Auditor Rose testified that the Claimant never requested union representation and that a different employee interviewed prior to the Claimant did bring a Union representative, thus, according to the Carrier the Claimant was not prevented from having union representation. Auditor Rose's testimony was not effectively rebutted and must be considered to be factually correct and because of that the Board is not persuaded that the Claimant was not treated fairly or in accordance with the Agreement.
The Board has thoroughly reviewed the transcript and record of evidence and it is determined that the Investigation and appeal process met the guidelines of the Agreement and Claimant was afforded all of his "due process" Agreement rights.
Turning to the merits, a review of the evidence and the testimony offered during the Hearing indicated that approximately 10,000 gallons of fuel at a cost of about $38,000.00, had been purchased with the Claimant's PIN number,(a private number known only by the Claimant). A substantial majority of those fuel purchases were for unleaded fuel, not diesel fuel that was used in Claimant's company vehicle ( a Ford F880, a diesel welding truck) and were purchased at a Phillips 66 Station located three blocks from the Claimant's residence and a little over 22 miles from the Claimant's work headquarters at Englewood Yard. Interestingly, the record her shows that the Phillips 66 Station did not sell diesel fuel, thus, there was no showing as to why so many fuel purchases would have occurred at that station. Furthermore, the record showed that many of the fuel purchases occurred on the weekends between 9:00 p.m. and 11:00 p.m. whereas the Claimant was assigned to work weekdays from 6:30 a.m. to 3:00 p.m. Additionally, it was not refuted that most of the unit gallons purchased exceeded the fuel capacity of the company vehicles.
The Organization argued in behalf of the Claimant that the Claimant's PIN number was used by someone else. However, Carrier Officer A. J. Rose testified on pages 58 and 59 of the transcript that if someone else did have access to the Claimant's PIN, then they would have made hundreds of purchases between 2008 and 2010 that would have required them to have access to four different fuel cards at four different locations at the exact time the Claimant also had access
P.L.B. No. 6.402to them. That scenario is highly unlikely since the Claimant was suppose to keep his PIN number private and no one else would have access unless the Claimant had given it to them. The Board is not persuaded that someone other than the Claimant purchased fuel using the Claimant's PIN number. Substantial evidence was adduced at the Investigation that the Carrier met its burden of proof that the Claimant purchased fuel for himself over a two year period using Carrier fuel cards.
The only issue remaining is whether the discipline was appropriate. At the time of the incident Claimant had approximately six years of service. (fin three different dates ( August 6, 9 and 16, 2010) the Claimant attempted to report and be paid for overtime he did not perform. Claimant signed a Waiver for those violations accepting a Level 4 discipline. Shortly, thereafter, the instant dispute arose wherein it was shown that the Claimant had committed another serious offense of dishonesty over an extended period of time. Countless arbitral boards have determined dishonesty is worthy of dismissal for first time offenders. The discipline assessed in this case was in accordance with the Carrier's UPGRADE Discipline Policy and it was not excessive, arbitrary or capricious, therefore, the Board finds and holds the discipline will not be set aside and the claim will remain denied.
