PUBLIC LAW BOARD NO. 7564
Case No. 124/Award No. 124 Carrier File No. 11-21-0099 Organization File No. S-P-2382-F Claimant: C. Massie
BNSF RAILWAY COMPANY )
)
-and- )
) BROTHERHOOD OF MAINTENANCE ) OF WAY EMPLOYEES DIVISION )
By leter dated October 29, 2020, C. Massie received a dismissal no�ce effec�ve immediately detailing “dishonesty when you falsely reported �me that was not worked between the dates of August 31, 2020 through September 22, 2020 when you were assigned as a Foreman, Gang I.D. BBCX-0636 on the Seatle Subdivision” for viola�ng MWOR 1.6 Conduct, and MWOR 1.15 Duty-Repor�ng or Absence.
The Organiza�on’s claim dated November 10, 2020, from Tim R. Gillum, Vice General Chairman, appealed the discipline, alleging procedural and substan�ve viola�ons regarding the inves�ga�on, and characterizing it as excessive and without merit. The Organiza�on requested that the discipline outlined in the Carrier’s October 29, 2020, leter be “removed from [Claimant’s] record and that she be returned to service and made whole for all her loses (sic), including over�me and benefits.”
By leter dated September 24, 2020, the Claimant received no�ce to atend an
“[I]nves�ga�on… at 1000 hours, Friday, October 2, 2020, at … Seatle, WA … for the purpose of ascertaining the facts and determining your responsibility, if any, in connec�on with alleged viola�ons that occurred between the dates of August 31, 2020 through September 22, 2020, on or about 1330 hours, at or near MP 57.7, on the Seatle Subdivision, resul�ng in a report of your dishonesty and falsely repor�ng �me that was not worked, when you were assigned as a Foreman, Gang I.D. BBCX-0636. Alleged viola�ons include but are not limited to your dishonesty and falsifying records when repor�ng �me worked.” The inves�ga�on, postponed by mutual agreement on one occasion, was held on October 1, 2020, at 0900 hours.
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The Carrier avers that the inves�ga�on was fair and impar�al, and the record proved by substan�al evidence that Claimant violated MWOR 1.6, Conduct and MWOR 1.15 Duty- Repor�ng or Absence and that the discipline was in accordance with the Carrier’s Policy for Employee Performance Accountability (“PEPA”).
The Organiza�on asserts that the Carrier denied Claimant a fair and impar�al inves�ga�on in viola�on of Rule 40 of the collec�ve bargaining agreement (“CBA”). Based on the Carrier’s procedural and substan�ve errors, Claimant’s dismissal is excessive and unwarranted. Moreover, the Carrier failed to meet its burden of proof because the record lacks sufficient facts and evidence.
Claimant is a nine (9) year Carrier employee with no prior disciplinary history. At the
�me of the allega�ons, Claimant acted as a foreman on a mobile structures gang. According to the Carrier, Claimant’s assignment consisted of four (4) ten-hour shi�s per week, Monday through Thursday, 0600 to 1600 hours. Claimant’s supervisor, Mr. Van Deven, alleges that a GPS data search ins�gated an inves�ga�on demonstra�ng that Claimant and other gang members failed to work the en�re shi�. Claimant was withheld from service pending the inves�ga�on and charged with viola�ng MWOR 1.6 Conduct, and MWOR 1.15 Duty-Repor�ng or Absence.
MWOR Rule 1.6 Conduct precludes the following: Employees must not be:
4. Dishonest
Any act of hos�lity, misconduct or willful disregard or negligence affec�ng the interest of the company or its employees is cause for dismissal and must be
reported. Indifference to duty or to the performance of duty will not be tolerated.1
MWOR 1.15, Duty-Repor�ng or Absence provides:
Employees must report for duty at the designated �me and place with the necessary equipment to perform their du�es. They must spend their �me on duty working only
for the railroad. Employees must not leave their assignment, exchange du�es, or allow others to fill their assignment without proper authority. Con�nued failure by employees to protect
1 Carrier Exhibit 18.
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their employment will be cause for dismissal.2
Over 118 hours of claimed compensa�on could not be accounted for by Claimant during the inves�ga�on.3 The evidence demonstrated that Claimant and gang members were at the hotel or at Claimant’s personal residence during assigned work hours. Claimant’s defense that she had no office and that many of her foreman du�es had to be performed in her motel room or residence fails to mi�gate Claimant’s failure to perform her du�es as required. Claimant’s other defenses were unsubstan�ated by the evidence.
Despite the Organiza�on's claims regarding the Carrier's alleged procedural errors, Claimant received due process and was neither impaired nor prejudiced by the proceeding. CBA Rule 40(B) permits an employee to be held out of service pending inves�ga�on “in cases involving serious infrac�on of rules.”4 It is the Carrier’s preroga�ve to withhold employees commi�ng serious crimes or offenses from duty pending inves�ga�on.5 Further, the no�ce issued to Claimant did not lack specificity and complied with CBA Rule 40(C). The �meframe and nature of the alleged misconduct and the date, �me, and place of the inves�ga�on were all included in the no�ce received by Claimant.
Although Claimant is a long-term employee of the Carrier with no prior disciplinary record, unless the Carrier’s ac�ons are deemed arbitrary, capricious, or an abuse of discre�on,it is axioma�c that it is not the func�on of the Board to subs�tute its judgment for that of the Carrier in a disciplinary mater. Given the GPS records, payroll records, hotel records, and other evidence, Claimant’s dismissal was appropriate and in accordance with the Carrier’s Policy for Employee Performance Accountability (“PEPA”).
Claim Denied.
2 Carrier Exhibit 19.
3 Exhibits 8, 9.10, 11, 12, 14. References to the Inves�ga�ve Transcript are denoted as (“Tr.”). Tr. 14-48, 104-105. 4 Exhibit 7. CBA Rule 40(B) provides “In the case of an employee who may be held out of service pending inves�ga�on in cases involving serious infrac�on of rules the inves�ga�on shall be held within ten (10) days a�er the date withheld from service. He will be no�fied at the �me removed from service of the reason therefor.”
5 See Public Law Board 3460, Award No. 11, Public Law Board 2746 Award No. 17.
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This Board, a�er considera�on of the dispute iden�fied above, hereby orders that no
Award favorable to the Claimant be made.
Zachary Voegel, Organiza�onal Member Joe Heenan, Carrier Member
Melinda Gordon, Neutral Referee
DATED: June 20, 2023
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