BEFORE PUBLIC LAW BOARD NO. 7590 CASE NO. 60
BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES DIVISION
V
BNSF RAILWAY
(Former ATSF Railway)
BNSF FILE NO. 14-16-0348 BMWED FILE NO. 2405 SLl3C5 169
Claim ant: 8. Krause STATEMENT OF CLAIM: "C laim of the System Committee of the Brotherhood that:
We present the following claim on behalf of Southwest District 700 Benjamin Krause (0125302) Seniority Date April 16 , 2012 for reinstatement with all seniorit y rights restored and all entitlement to, and credit for, benefits restored, in cluding vacation and health in sura nce benefits. The claimant shall be made whole for all financial losses as a result of the violation, including compensat ion for: 1. ) st raight time for each regular work day lost and holiday pay for each holida y lost, to be paid at the rate of the position assigned to the claimant at the time ofremoval from service (this amount is not reduced by earnings from alternate employment obtained by the claimant while wrongfully removed from service); 2.) any general lump sum payment or retroactive general wage increase provided in any applicable agreement that became effective while the claimant as out of service; 3.) overtime pay for los t overtime opportunities based on overtime for any position claimant could have held during the time claimant was removed from serv ice , or on overtime paid to any junior employee for work the claimant could have bid on and performed had the claimant not been removed from service; 4.) health , dental and vision care in su rance premiums, deductib les and co-pays that he would not have paid had he not been unjustly removed from service commencing April 13 , 2016 , continuing forward and/or otherwise made whole. All notation s of the dismissal should be removed from all Carrie r records.
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 received a letter dated June 7, 2016:
An investigation has been scheduled at 1000 hours, Tuesday, June 14, 2016, at the Roadmaster' s Office, 115 East 5th Street, Newton, KS 6711 4, for the purpose of ascertaining the facts and determining your responsibility, if any, in connection with your alleged falsification of payroll records on May 24, 2016 and May 25, 2016 , while holding a Trackman/Flagman position in Newton, KS. The date BNSF received first knowledge of this alleged violation is June I, 20 I 6.
This inves tigation will determine possible violation of MWOR 1.6 Conduct.
An investigation was held following a postponement. Claimant was notified in a letter dated July 27, 2016:
As a result of investigation held on Wednesd ay, July 6, 2016 at I 000 hours at Upstairs Conference Room, 115 East 5th St., Newton, KS, 67114 you are hereby dismissed effective immediately from emplo yment with the BNSF Railway Company for falsification of payroll records on May 24, 2016 and May 25, 201 6, while holding a Trackman/Flagman position in Newton, KS.
This letter will be placed in your personnel record.
It has been determined through testimony and exhibits brought forth during the investigation that you were in violation of MWOR 1.6 Conduct.
In assessing disci pli ne, consideration was given to your discipline record and the discipline assessed is in accordance with the BNSF Pol ic y for Employee Performance and Accountability (PEPA).
Enclosed are copies of the investigation transcript and exhibits entered during the investigation. Copies of these documents have been sent to your Representative.
This letter will be placed in your personne l record.
The Carrier argues that Claimant violated Rule 1.6 by not working but putting in for pay as a Flagman. According to the Carrier, Claimant texted that he would not be to work, nobody saw him at work, and Claimant did not perform any flagging duties. The Carrier argues that it is a question of witness credibility and deference must be giving to the hearing officer 's determination of credibility.
The Organization argues that nothing was proven. Claimant worked as a Flagman and was not assigned to a work group . He received assignments as they came and then went to the flagging work. He waited in the Car Shop parking lot on the two days at issue.
The Board sits as an appellate forum in discipline cases. As such, it does not weigh the evidence de nova. 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 decision been ours. Rather, our inquiry is whether substanti al evidence exists to sustain the finding against Claimant. 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:
Employees must not be:
I. Careless of the safety of themselves or others
Negligent
Insubordinate
Dishonest
Im moral
Quarrelsome or
Discourteous
The Board has revie wed the evidence. There are no procedural violations which void the dis cipline . On the merit s we find that here is no substantial evidence in the record to support the discipline.
A review of the evidence shows that the Roadmaster was on vacation. Upon his return, two emplo yees who shared supervisory duties in his absence mentioned that Claimant had not been to work on two days. Thin kin g nothing of it, the Roadmaster was surprised to see that Claimant put in for a Tuesday and Wednesday as a Flagman. The in vestigat io n ensued.
Carrie r places significant weight on two texts - one statin g that Claimant would be late due to the need to get paperwork signed and another that Clai mant might not be in to work due to cattle running loose at his father's farm. Claim ant explained that he was able to arrange getting the paperwork sig ned after work and that the loose cattle turned out to be minor and he arrived on time for work. Neither of Claimant's assertions were refuted.
Carrier also placed weight upon the testimony of Assistant General Car Foreman O'Brien. Claimant had been doing flagging for a leaking Hazmat car and asphalt contractors the prior week. Claiman t contacted him, accord ing to Mr. O' Brien , to verify that Cla imant had been working as a flagman on the two days. Mr. O'Brien refused because he did not see Claimant flagging.
Claimant s flagging duties with the Car hop had ended the previou Friday. Claimant testified that he waited for his flagging a ignments near the Car hop Facility and was asking Mr. 0 Brien to verify that he sa laimant sitting in the lot in hi pickup. Claimant testified that he saw Mr. O' Brien enter the lot, but that Mr. O' Brien mu t not have seen him. According to Claimant he did not ask for a fraudulent staterneot that he had been working as a flagman rather than he had been waiting in the lot. This testimony is also unrefuted.
The evidence shows that Claimant was sitting in the Car Shop lot like he had done during his prior shifts working as a Flagman. Mr. Willingham was on vacation and Claimant was commun icatin g v ith the two employees who were handling supervi ory duties in the Roadma ster' s absence as well as Roadma ters covering the area during W illingh am 's absence. At most, the evidence shows unclear communication between Claimant and the employees sharing the supervisory duties. Unclear communication is not evidence of falsifying payroll. However Claimant need to be mindful that the parking lot is not his designated a sembly point and simply pulling into the lot is not the ame as r porting for duty. He has an obligation to make his physical pre ence known to the upervisor. There is no substantial evidence of dishonest conduct by Claimant.
Award:
Claim su tained.
Organization Member
L
Brian Claus
eutral Memb r Carrier Member