Following the investigation, the Carrier found Claimant guilty of the charges and assessed him a 10-day actual suspension which, in addition to a previous five-day overhead suspension, resulted in a 15-calendar day suspension.
Emil Marrero, Carrier Engineer of Track at its Jacksonville, Florida Division, testified at the investigation that Claimant was in his employ on the relevant dates. He stated that the Florida Department of Transportation had forwarded him disputed bills for verification and explanation, and he determined that Claimant had two hotel stays during the same four-day period, and had stayed in corporate lodging on a vacation day and on a weekend when he was not working. Mr. Marrero explained that with respect to the double-stay incident, Claimant had checked into a hotel in West Palm Beach, but because of material problems his crew was instructed to move to Hialeah. However, Claimant never checked out of the first hotel, as he acknowledged at the investigation. He contended that the situation was chaotic and he had simply forgotten. He had no explanation for the other occasions, beyond stating that when he was not working he would go home.
The Carrier first asserts that all of the Claimant's procedural rights were fully protected and the hearing was conducted in a fair and impartial manner. On the merits, the Carrier asserts that it demonstrated, with substantial evidence, that Claimant is guilty of improperly using Carrier-provided lodging. The Carrier notes that its records show that Claimant was either on paid leave or rest days, or was checked into two hotels at once, on the days in question. Moreover, the Carrier notes, Claimant admitted that he was checked into two hotels at once, and his denials that he improperly used the lodging on other occasions should not be credited over the Carrier's testimony and documentary evidence.
Given Claimant's guilt, the Carrier asserts that the discipline was fully justified. Claimant's conduct, the Carrier asserts, amounts to theft, which can justify dismissal for even a first offense. The Carrier points out that Claimant previously had a five-day overhead suspension for a similar offense, so the penalty here, 10 days actual suspension plus the activation of the overhead suspension, cannot be deemed inappropriate or excessive. Thus, the Carrier urges that the claim be denied.
The Organization asserts that the Carrier has failed to meet its burden of proving Claimant's guilt by substantial evidence. The Organization notes that the Carrier based its decision to assess a 15 day suspension, and the restitution of $695.95, on a hotel stay audit conducted in about January 2007, which supposedly revealed that Claimant engaged in unauthorized use of Company-provided lodging on November 2, and December 15 and 16, 2006, and that Claimant was checked into two motels at the same time on September 26, 27, 28 and 29, 2006. However, the Organization urges, the record evidence does not support these charges, and the claim should be sustained.
Carrier has met its burden of proving Claimant's guilt by substantial evidence. Claimant admitted that he failed to check out of one hotel when he was ordered to a new location, exceedingly negligent conduct at best. He had no defense to the Carrier's records establishing unauthorized stays on other occasions. Thus, his guilt has been proven by substantial evidence.
Given that Claimant's conduct borders on theft, the 1 S-day suspension imposed upon him by the Carrier is lenient and will not be disturbed by this Board.