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PUBLIC LAW BOARD NO. 7633

Brotherhood of Maintenance

of Way Employes Division - IBT and

Union Pacific Railroad Company

(Former Missouri Pacific Railroad Company)

Case No. 157

Award No. 157

STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood that:

The Carrier's discipline (dismissal) of Mr. G. Cruz, by letter dated October 14, 2019, for alleged violation of Rules 1.6: Conduct- Dishonest, 1.13: Reporting and Complying with Instructions, SSI Item 10-1: Union Pacific Railroad Policies and Rule 1.6 Conduct - which reads: "'Any act of hostility, misconduct, or willful disregard or negligence affecting the interest of the company or its employees is cause for dismissal and must be reported."' (Employes' Exhibit 'A-1'), was severe, harsh, imposed without the Carrier having met its burden of proof and in violation of the Agreement (System File UP4 l 6RR19/1729887 MPR).
As a consequence of the violation referred to in Part 1 above, we request:

'*** these charges be removed from Mr. Gilbert Cruz Personal Record. Also, to be paid and compensated for any and all time at the Claimant's respective straight time rate of pay, and all overtime to be paid at his respective overtime rate of pay that the gang he was assigned to was afforded and the employee performing the claimant's work had he not been unjustly and excessively disciplined. Also, to include any and all holidays and all lost time to be credited to Railroad Retirement, hospitalization to include physician office visits etc. dental, prescriptions and vision beginning on August 3,2019 (sic) through and including on a continuous basis until this matter is settled. Also, to include any and all expenses the Claimant may have acquired to include meals, lodging. And mileage at the negotiated rate of 58.5 cents a mile from Mr. Fuentes (sic) place of residence at 6947 Sunset Village Drive San Antonio, Texas 78249 to San Antonio Hampton Inn Brooks City Base 8202 City Base Landing ,San Antonio, Texas and return to Mr. Cruz (sic) place of residence for his attendance at this Formal Investigation on August 20,2019 (sic) account of the Carrier unjustly and excessively charged and disciplined the Claimant without sufficient supportive evidence and not affording him a Fair and Impartial investigation,forcing (sic) him in a worse position,ausings (sic) him a loss of work opportunity loss of wages and causing him financial hardship.

* * *

The Organization request (sic) that in such time in which Mr. Gilbert Cruz be re-instated to service that he would not be subjected to any additional probation under the Union Pacific MAPS Policy Specifically Rule 3.7 Arbitration decision in which the carrier can revert employee status to a second trigging/training event with a 36- month retention period.

As a remedy for this violation, the suspension should be set aside, and the claimant shall be made whole for all financial and benefit losses because of the violation. Any benefit lost including vacation and health insurance benefits shall be restored. Restitution for financial losses because of the violation shall include all straight time pay, overtime pay, and loss of holiday pay for time Mr. Gilbert Cruz EID (0423092) was held out of service and that Mr. Ramos (sic) be returned to service.' (Employes' Exhibit 'A-2')."

FINDINGS:

Public Law Board No. 7633, upon the whole record and all the evidence, finds the parties involved in this dispute are respectively Carrier and Employees within the meaning of the Railway Labor Act, as amended; this Board has jurisdiction of the dispute herein; the parties were given due notice of hearing before this Board and they participated therein.

The Claimant was disciplined pursuant to a Notice of Investigation dated August 16, 2019, Investigation held September 25, 2019, " ... to develop the facts and determine your responsibility, if any, in connection with the below charge. On 08/13/2019 the Carrier gained knowledge that during the month of July 2019 you allegedly were dishonest when you falsely claimed pay for hours you did not perform compensated service for the Carrier. This allowed you to receive pay that you were otherwise not entitled to. This is a possible violation of the following rule(s) and/or policy:

1.6: Conduct - Dishonest

1.13: Reporting and Complying with Instructions SSI Item 10-I: Union Pacific Railroad Policies Rule 1.6: Conduct - which reads:

'Any act of hostility, misconduct, or willful disregard or negligence affecting the interest of the company or its employees is cause for dismissal and must be reported.'

Under the MAPS Policy, this violation is a Dismissal event. Based upon your current status, if you are found to be in violation of this alleged charge, Dismissal may result "

In a discipline letter dated October 14, 2019, the Carrier found that "... the evidence more than substantially supports the charges against you. The following charge has been sustained:

On 08/13/2019, while employed as a Welder, the Carrier gained knowledge that during the month of July 2019, you were dishonest; when you falsely claimed pay for hours you did not perform compensated service for the Carrier. This allowed you to receive pay that you were otherwise not entitled to. This is a possible violation of the following rule(s) and/or policy:

1.6: Conduct - Dishonest

1.13: Reporting and Complying with Instructions SSI Item 10-I: Union Pacific Railroad Policies Rule 1.6: Conduct - which reads:

'Any act of hostility, misconduct, or willful disregard or negligence affecting 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.'

Based on your current record, you are hereby dismissed from all service with the Union Pacific Railroad "

The Organization appealed the discipline and the Carrier denied the appeals. The dispute was not resolved during a settlement conference and progressed to arbitration. This matter is now before the Board for final and binding resolution. The Board has carefully reviewed the entire record in this case, including the arguments and awards provided in support of the parties' respective positions, whether or not specifically addressed herein.

The Organization raised Rule 22(c)(1) "precise charges" procedural violation defenses to the Notice of Investigation. Under the facts and circumstances of this case, the Board finds this persuasive with respect to the charge: "SSI Item 10-1: Union Pacific Railroad Policies". Rule 22(c)(l) of the parties' Agreement requires the Carrier to provide "... precise charges sufficiently in advance ... " of the Investigation. Said charge fails to meet said requirement. Consequently, the Board excludes the charge, and the policies admitted into the record in support of the charge.

The Organization raised a number of Rule 22(a)(1) "fair and impartial hearing" procedural violation defenses to the Carrier's Corporate Audit "Special Investigation - Theft of Time and Per Diem" in this case. The Board notes that in Award 45, PLB 7633 held, in pertinent part, that "Rule 22 is not intended and cannot be read to include investigations by Corporate Audit. Therefore the Claimant was not authorized a duly accredited representative when questioned by Corporate Audit." Evidence from Corporate Audits,

including those conducted telephonically, has been accepted by PLB 7633. This includes bargaining unit member statements and/or admissions allegedly made during Corporate Audits.

The Board notes however, that in such cases the Rule 22 Investigation record included a Corporate Audit transcript. The Investigation record in this case does not. Corporate Audit's conclusory summarizations and characterizations of alleged Audit statements and/or admissions are unsupported by Audit transcript. Additionally, at the Investigation Claimant denied making key alleged Audit statements and/or admissions which at the Investigation the Carrier attributed to Claimant.

The Board finds that under the facts and circumstances of this record, the Carrier's Rule 22 Investigation use of alleged Corporate Audit statements and/or admissions, unsupported by Audit transcript, violated the "fair and impartial hearing" requirement memorialized by the parties in Agreement Rule 22(a)(l). Consequently, the Board excludes from the record alleged Corporate Audit statements and/or admissions, and evidence derived therefrom.

Upon detailed review of the remaining charges and record, the Board finds that there is not substantial evidence in the record to uphold the Carrier's determination of culpability.

AWARD

Claim sustained. Pursuant to Rule 22(f) of the parties' Agreement Claimant is reinstated to service at Claimant's former position, with full seniority unimpaired, and afforded the remedy provided therein. Claimant's record shall not contain any MAPS status pertaining to this matter. The Carrier is directed to comply with this Award on or before 30 days following the date by which any two members of the Board have affixed their signatures hereto.

Christopher B&'genreif Carrier Member

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Schli :==-~-~= Organization Member

May 18, 2022

Dated