BEFORE PUBLIC LAW BOARD NO. 7590 CASE NO. 56
BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES DIVISION
V
BNSF RAILWAY
(Former ATSF Railway)
BNSF FILE NO. 14-16-0257 BMWED FILE NO. 1547-SLl3C5-165
Claimant: C. Klutts STATEMENT OF CLAIM: "C laim of the System Committee of the Brotherhood that:
We present the following claim on behalf of Southeast District 900 Chad Klutts (1670702) Seniority Date November 30, 2006 for reinstatement with all senior it y rights restored and all entitlement to, and credit for, benefits restored, including vacation and health insurance benefits. The claimant shall be made whole for all financial losses as a result of the violati on, including compensation for: I.) straight time for each regular work day lost and holiday pay for each holida y los t, to be paid at the rate of the position assigned to the claim ant at the time of removal from service (this amount is not reduced by earnings from alternate employment obtained by the claimant whil e wrongfu lly removed from service); 2.) any general lump sum payment or retroactive general wage increase provided in any applicable agreement that became effective while the claim ant was out of service; 3.) overtim e pay for lost overtime opportunities based on overtime for any position claimant could have held during the time claim ant was removed from service, or on overtime paid to any junior employee for work the claimant could have bid on and performed had the claima nt not been removed from se rvice ; 4. ) health , dental and vision care insurance premiums, deductibles and co-pays that he would not have paid had he not been unjustly removed from serv ice commencing Apr il 13 , 20 16, continuing forward and/or otherwise made whole. All notat io ns of the dismissal should be removed from al I Carrier records.
Figdines:
The carrier or carriers and the employee or employees involved in this dispute are respectively carrier or employee within the meaning of the Railway Labor Act as approved June 21, 1934.
Public Law Board 7590 has jurisdiction over the parties and the dispute involved herein .
Parties to said dispute were given due notice of hearing thereon.
Claimant was notified to meet his Roadmaster for the Roadmaster to accompany him on track ins pections. Upon Claimant arriving over three hou rs late to the meetin g, the Roadmaster began an audit of Claim ant's time and in s pections. Claimant received a le tter dated April 13, 2016:
An in vestigatio n has been scheduled at 1000 hours, Friday, April 22, 2016 , at the Gainesville Yard Office, 1328N Dixon, Gain esville , TX, 76240, for the purpose of ascertaining the facts and determining your responsibility, if any, in connection with your alleged dish onesty in false reporting of pay records and FRA inspecti ons beginning March I , 2016 and continuin g. The date BNSF received first knowledge of this alleged violation is April 12, 2016.
This investigation will determine possible violation of MWOR 1.6 Condu ct.
This is to advise CHAD A KLUTTS is being withheld from se rvice pending results of investigation.
An investigation was held following a postponement. Cla im ant was notified in a letter dated May 10, 2016:
As a result of investigation held on T uesday, April 26, 2016 at 1000 hours at Gainesville Yard Office, 1328 N Dixon, Gainesville, TX, 76240 you are hereby dis missed effective imm ediately from employment with the BNSF Rail way Company for dis honesty in false reporting of pay records and FRA in s pection s beginning March I , 2016 and continuing.
It has been determ ined through testimony and exhibits brought forth during the in vestigation that you were in violatio n of MWOR 1.6 Conduct.
In assessing discipline , consideration was given to your discipline record and the disci plin e assessed is in accordance with the BNSF Polic y for Emplo yee Performance and Accountability (PEPA).
Enclosed are copies of the in vestigatio n transcript and exh ibits entered during the in vestigatio n. Copies of these document s have been sent to your Representative.
This letter will be placed in your personnel record.
The Carrie r argues that Claimant listed several track inspections on days that his truck never left his driveway at his home. The evidence showed that he lis ted in spections that would have required track authority but that track authority was not obtaine d on those dates. Further, Claim ant's explanation that his truck was in the yard for another Track Ins pector to use is belied by the fact that the truck did not move durin g that period.
The Organization counters that there was no evidence of Claimant's falsifying inspections. He had valid explanations such as doing an inspection by train . Further, the re is a signed stateme nt
by ten other employees about how they were directed by the Roadmaster to avoid overtime and " make it up other ways." Claim ant was simply making up his time in other ways.
The Board sits as an appellate forum in discipline cases. As such, it does not weigh the evidence de novo. Thus, it is not our function to substitute our judgment for the Carrie r' s judgment and decide the matter according to what we might have done had the decis ion been ours. Rather, our inquiry is whether substantial e vidence exists to sustain the finding agains t Claim ant. If the question is decided in the affirmative, we are not warranted in disturbing the penalty absent a showing that the Carrie r' s actions were an abuse of discretion.
MOWOR Rule 1.6 provides:
1.6 Conduct
Employees must not be:
Careless of the safety of themselves or others
Negli ge nt
Insubordinate
Dishonest
Imm oral
Quarrelsome or
Discourteous
The Board has reviewed the evidence. There are no procedural violations which void the disciplin e. On the merits we find that there is substantial evidence in the record to support the discipline. The evidence shows that Claimant submitted payment for work that he could not have performed. A Hyrail truck was requir ed for some of the inspections and it did not leave Claiman t's house or yard when some of the inspections were allegedly performed. Track authority was required for some of the inspections and it was not obtained. Further, Claim ant' s statements at the hearing that he was unfamiliar with TIMS or payroll are not convinc ing and do not negate his conduct.
Employeeshave a duty to do their job. The evidence shows that Claimant did not perform the track inspections that he reported as having completed. There is substantial evidence to support the finding of Rules infraction.
Given the nature of the in fraction, the Carrier's decision to dismiss Claimant was not an abuse of Carrier discretion.
Award:
Claim denied
Organization Member
Brian Clauss
eutral Member Carrier Member