vs.
(Former St. Louis-San Francisco Railway Co.)
Case No. 63; Award No. 63 (Ponzer) Carrier File No. 12-15-0127 Organization File No. 493-FR9 l D2-153 NMB Subject Code 119
STATEMENT OF CLAIM:
Claim of the Atchison Topeka & Santa Fe Frisco System Federation of the Brotherhood of Maintenance of Way Employes Division of the International Brotherhood of Teamsters. Region I that:"... Mr. Ponzer was not guilty and by the violations to due process of the Railway Labor Act, expressed in SLSF Agreement the Organization contends the assessed discipline is excessive and unwarranted Mr. Ponzer should be placed back in service immediately with all charges dismissed and removed from his record with ALL monetary losses incurred be repaid to Mr. Panzer."
Public Law Board No. 7394, upon the whole record and all the evidence, finds that the parties herein are Carrier and Employees within the meaning of the Railway Labor Act, as amended; that the Board has jurisdiction over the dispute herein; and that the parties to the dispute were given due notice of the hearing and did pa11icipat<.: therein .
Claimant, Frank I,. Panzer, had been employed by the Carrier since 1992. On April 21, 2015, the Carrier charged Claimant to attend an investigation on May 4, 2015, to ascertain the facts and determine his responsibility, if any, in connection with his alleged falsification of payroll on April 7, 2015, when he claimed pay for working at a time he was observed conducting personal business. The Carrier claimed first knowledge on J\pril 20. 2015. On July 9, 2015, the Carrier found that Claimant had falsified payroll on January 15, 2015 and dismissed him from the Carrier's employment. The Carrier stated that it had determined that Claimant had violated Maintenance of Way Operating Rule (MOWOR) 1.6 Conduct, which prohibits dishonesty. Claimant had no previous disciplinary record.
At the time of the incident, Claimant was an independent Special Equipment Operator (SEO) headquartered at Cuba, Missouri. The Canier maintains a hotline for employees and other individuals to report misconduct hy Carrier employees. On or about January 15, 2015, the hotline received an anonymous call reporting that on or about January 15. 2015, Claimant had used a Carrier vehicle to travel to Smith Sand and Gravel in Rolla, issouri, where he purchased stone for personal use, had it loaded into the Canier vehicle and transported it to his home.
Carrier Roadmaster Whitney Weston testified at the investigation that on or about April 16, 2015, she received a report from Ann Chavez, the director of the Carrier's hotline for reports of employee misconduct. The report indicated that on or about January 15, 2015, the hotline received an anonymous call alleging that Claimant had. on that date, used his Carrier vehicle to transport gravel from Smith Sand and Gravel in Rolla, Missouri, to his home, for his personal use.
In her report, Ms. Chavez noted that she had, on April 14, 2015, spoken with an individual named Larry Smith, purportedly the owner of Smith Sand & Gravel, who remembered that Claimant had come in to pick up six tons of gravel, paying in cash. She stated that Mr. Smith told her he did not know if the gravel was for personal or Carrier use, and he did not have an invoice or receipt. The report concluded that Ms. Chavez had no further avenues to prove or disprove the anonymous hotline allegations.
On or about May 1, 2015, Ms. Weston checked Claimant's payroll records for January 15, 2015, which showed that Claimant worked his regular assigned hours of 7 a.m. to 5:30 p.m. on January 15, 2015. She also ascertained that he had been driving a Carrier dump truck on that date, and obtained records showing that he had fueled the truck. There were no records showing his actual location at any time.
The record also includes an e-mail to Ms. Weston, purportedly from Mr. Smith, dated May 20, 2015. Ms. Weston testified at the investigation that she met with Mr. Smith about a week before that, and asked for the e-mail to confirm their conversation. The email states that Mr. Smith knew who Claimant was, and he did pick up a load of river rock on January 15, 2015, in a Carrier vehicle. Ms. Weston stated that she did not show Mr. Smith a photograph of Claimant. The e mail stated that Claimant had paid $40 in cash, but Mr. Smith did not have a receipt.
h
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We have carefully reviewed the record in its entirety. The Organization asserts that the claim must be sustained on various procedural grounds. As the Organization points out, the Investigation Notice stated that Claimant was accused of falsifying time on April 7, 2015. At the opening of the hearing, which was eventually held on June 12, 2015, the Hearing Officer stated that the date was a typographical error, and the incident date was in fact January 15, 2015, and that is the date the investigation focused on, and the basis of the eventual dismissal. The parties' agreement requires that an investigation ..shall be set promptly to be held not later than fifteen (15) days from the date of the occurrence, except that personal conduct cases will be subject to the fifteen (15) day limit from the date information is obtained by an officer of the company ... " Clearly the Notice of investigation and all of the subsequently scheduled and rescheduled investigation dates were well after 15 days from January 151 . The Organization claims two violations in connection with this. First, that the Notice identified the wrong date, and thereby
prejudiced Claimant and the Organization in preparing and presenting their case. Second, that the time for convening an investigation had long passed, and thus the Carrier should be barred from conducting any investigation.
The date of April 7 in the investigation 7':otice appears to have been copied from the Notice in a companion case, where Claimant was accused of untruthfulness in an interview on that date, concerning his conduct on January 15 . Simply claiming that misinformation in a notice is a typographical error should be subject to close scrutiny, lest the requirement of actual and accurate Notice be undermined. On the specific facts of this case, though, we find that the alleged prejudice is more apparent than real. The Organization and Claimant knew what conduct was in question, and when it occurred. They were offered the option of a recess or a postponement to allow for additional preparation. Their defense was vigorous and complete. Taken as a whole, we do not find that Claimant's right to a fair and impartial hearing was denied by the error.
The question of the timeliness of the investigation is somewhat more involved . The conduct took place three months before the Notice was issued. The Carrier became aware of the allegations almost immediately after the alleged conduct, through an anonymous call to a hotline it operates. The caller identified the employee, the specific misconduct, the use of company vehicle, the time of the misconduct, and the name of the sand and gravel yard involved. The hotline supervisor, Ms. Chavez, promptly informed the Roadmaster, Ms. Weston, who told her to investigate further and try to confirm the report. Notwithstanding this directive, Ms. Chavez appears to have done little further until April. when she took the obvious step of calling the owner of the sand and gravel yard, who would have been the only witness to any of these events other than Claimant. She did this on April 13, roughly a week after Ms. Weston and the District Engineer had met with Claimant, heard his denials, and decided to counsel him on the rules and close the file for a lack of evidence. After Ms. Chavez informed Ms. Weston of her contact with the owner, Ms. Weston followed up and confirmed the information, then initiated this and the companion investigation.
The Carrier asserts that Ms. Weston had first knowledge of the critical information in mid April. The Organization argues that first knowledge only matters in conduct cases, that the Notice made no mention of conduct. and thus the 15 days should run from January 15. We agree with the Carrier's observation, on page 7 of its response to the appeal, that a charge of falsifying payroll rather clearly involves conduct, even if that particular word is not used. First knowledge is therefore relevant, and prior cases make it clear that first knowledge by a Company officer means an officer with the authority to initiate an investigation. Ms. Chavez docs not have that authority, while Ms. Weston does. While the Board has st'rious reservations about the inexplicable delay in following up on the hotline call, that issue was not argued on the property and is not squarely presented by the appeal. The date of first knowledge is squarely raised, and we conclude that first knowledge took place on April 16, 2015, when Ms. Chavez e-mailed Ms. Weston that the owner had confirmed the allegations made in the hotline call. 1 Fifteen days from April 16 is May 1. The investigation was not scheduled to be convened until May 4. The Board therefore concludes that
1 The Carrier alleges that it had first knowledge on April 20. It is not at all clear how it identified that date, but the record is clear that Roadmaster Weston knew the hotline information had been confirmed as of April 16.
the Carrier failed to comply with the requirement that the investigation he held within fifteen (15) days of first knowledge, and that the <.:laim should be sustained on that basis . 2
AWARD
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2 We also note, as more fully discu c:d in Case 64 . the companion case co this one, that thc evidence on the merits is shocki'1gly insutfo:icnt to sup:,on the di mis al of a 20-plus y1:.ir c:11: pl o) c:c v. ith no pr:or discipline.