vs.
Transportation, Inc.
Carrier
Referee: Sherwood Malamud
FINDINGS
The Board, upon the whole record and on the evidence, finds that the parties herein are and Employees within the meaning of the Railway Labor Act, as amended; that this Board
is duly constituted agreement of the parties; that the Board has jurisdiction over the dispute, and that parties were given due of the hearing.
By Jetter dated November 2016. Claimant, Track Foreman Wadlow requested that this disciplinary matter be processeo by Public Law Board 7529 (Special Board of Adjustment)
expedited 1 JM.ti u u u 5 •
Carrier hired J. C. Wadlow on December 8, 2008. By letter dated October 4, 2016) Roadmaster N.R. Hahn notified Claimant of an investigatory hearing concerning allegations that he left work without permission on September 20, 2016, and on September 22, 2016 hefalsified a switch tie report and recorded repair of a defect, FRA 213.9b which had not been performed. After an investigatory hearing on October 20, 2016, Great Lakes Division Engineer
J.S. by letter dated November 8, 2016 determined that the appropriate penalty for
Claimant's conduct was dismissal.
During the hearing, the charging officer Roadmaster Hahn withdrew the charge that Claimant work early on September 20, 2016. At the hearing, he charged Claimant with violating Operating Rule 104.2(a) dishonesty and 104.3d, Carelessness, incompetence, or willful neglect of duties.
On September 2016 toward the work day, Roadmaster Hahn in passing, asked Claimant the Foreman of a switch tie crew, how many ties he put in on this day. Claimant responded-12. Then the Roadmaster encountered a member of the crew in the parking lot. The
zero were in on rail defect had been
ret>an:ea that day. Roadmaster
on October 2016.
=ui,.A argues that Claimant reported on the
been in, repaired on September 22, 2016. Claimant claims that he "banked" the installation of 12 from the and that he conld not remember when rail had repaired. The Carrier met its burden of proof that Claimant falsified documents.
It is Claimant who had the burden to establish tbe existence of the practice of banking ties. Other employees were asked about the practice, none confirmed its existence. With regard to the repair of the defect, Claimant was dishonest in reporting that work was done that had not been done.
Dismissal is the appropriate penalty. This is Claimant's second major offense within a I
year period.
Claimant was not dishonest with regard to putting in 12 ties. The work was done. The
v ,,,.""'·" establishes a welding work. did not meet burden
that Work is banked, amount performed on one day is under reported, to permit reporting on occasion when there is
Procedural Objection
At the on property hearing on October 20. 2016, the Organization objected to the October 4, 2016 notification letter's failure to set out the Rnles allegedly violated by Claimant that would form the basis for the investigation. This Board determined in Awards 106 (MacDougaU) and 114 (Malamud); NRAB Third Division Award No. 35022, BM\VE v. BNSF (Kenis) that it was not necessary to specify the Rules allegedly violated. Under Ru.le 25, the Carrier had to provide sufficient information to alert Claimant of the conduct that is the subject of the investigation. The Carrier did so in the October 4, 2016 notification letter.
The Organization argued that the factual specificity with regard to accurate mile post markings was lacking. The Carrier need only provide sufficient factual allegations as to alert the
asto is meets test.
The Carrier bears the burden of proof of establishing that Claimant was dishonest. The establish that Claimant deliberately entries made on Carrier's ITIS
"'"''t"'m so as to mislead work was not perfom1ed would appear in the Carrier's as work performed.
discrepancy between work claimed to have been performed and the work in fact performed came to light in an offhanded manner, a passing question from Roadmaster Hahn to Claimant about what work had been performed on September 22.
The Carrier established through the testimony of switch tie crew members Miller and flicks that 12 of varying were not put in on September 22, 2016. However. Miller testified on cross examination that there were occasions, when the work performed did not appear on the list of jobs to be done. He did not testify, nor is there any evidence that this crew had not put in 12 ties while under Claimant at a time proximate to and prior to September 22.
The did establish that the did not occur 011 September 22. It did not establish that the failure to accurately report that ties were put in on September 22, when none were put in, was entered by Claimant to deliberately deceive and/or mislead the Carrier. The Roadmaster did not enter evidence work was not immediately prior to September 22 or that he had to work to the on track in the yard. its
to establish practice of"banking ties."
Claimant did not recall nor did he provide any useful evidence concerning the repair of the FRA 213.9b defect. However, Roadmaster Hahn did not have photos of the defect. He did not recall who and when the defect was repaired, except that it was repaired after September 22.
Again the overriding charge is dishonesty. Nonetheless, the record evidence supports a finding by Great Lakes Division Engineer Hess that the defect had not been repaired prior to September 22. In cases which call for the evaluation of conflicting testimony, the determination of the decision maker. Hess in this case, should not be disturbed so long as there is evidence to support the decision maker's determination. NRAB Second Division, Award No. 12804 (Wesman) and NRAB Second Division, Award No. 12808 (Wesman). The defect was repaired by a crew assigned by Roadmaster Hahn after September 22.
The Board concludes that the Carrier did not establish that Claimant was dishonest with regard to the manner in which he reported putting in the switch It did establish that Claimant 'haS dishonest concerning the repair of the FRA 213.9b rail defect. Further, this is the second
Sherwood Malamud
Neu
Date: