Brotherhood of Maintenance ofWay Employcs )
Division - IBT Rail Conference )
)
And )
)
Norfoll< Southern Railway Company (Former )
Case No. 223 Award No. 223
_Norfoll< &_
Sou th ern Railway Company) )
)
Richard K. Hanft, Chairman and Neu tral Member
D. M. Pascarella, Employee Member
D. L. Kerby, Carrier Member
STATEMENT OF CLAIM:
"Claim of the System Conunittce of the Brotherhood that:
The Carrier's discipline [thir ty (30) day actual suspensio n] of Mr. K. Akers, issued by letter dated .Ju n e 14, 2016, in connection with his alleged conduct unbecoming an cmployc in that on May 11, 2016, he impersonated a Co mpany officer to obtain confidential information for personal gain when he contacted Evans Construction to verify dates and the number of hours the company worked on Norfoll<. Southern property was harsh, excessive and unfair (Carrier Vile MW-BLUE -16 -48-LM -517 NWR).
As a consequence of the violation referred to in Part 1 above, Claimant K. Akers shall be made whole for all lost time, wages, vacation and all rights and privileges."
FINDINGS:
Special Board of Adjustment Board 1048, upon the whole record and all of the evidence, finds and holds that Employee and Carrier arc employee and carrier within the meaning of the Railway Labor Act, as amended; and, that the Board has jurisdiction over the dispute herein; and, that the parties to the dispute were given clue notice of the hearing thereon and did participate therein.
This Award is based on the facts and circumstances of this particular case and shall not serve as a precedent in any other cases.
Special Board of Adjustment No. 1048
Award No. 223
After thoroughly reviewing and considering the record and the parties' presentations, the Board finds that the claim should be disposed of as follows:
Claimant in this matter had nineteen (19) years seniority and was employed by Carrier as a Track Patrol Foreman. Claimant does not deny that on May 11, 2016 he made a telephone call to Evans Construction Company. Claimant testified that he identified himself by name, stated that he was a foreman for the Norfolk Southern and inquired about the dates that the company had performed saw cutting for the Norfolk Southern.
The secretary at Eva ns Construction Company that received Claimant's call produced a written statement that was admitted to the record claiming that Claimant called, identified himself by name and stated that he was a " supervisor for Ricky Lee" before relJuesting the information.
May 11 , 2016 was a Wednesday and it is undisputed that Claimant had the following three
(3) workdays off for FMLJ\-protected leave. When Claimant returned to work on Monday, May 16, 2016, before he could even get out of his car, he was approached by two Carrier officers and informed that he had been taken out of se1v ice and to leave the Carrier's pro perty.
Claimant was summone d to an inves tigation that was conducted on June 1, 2016. He was charged with conduc t unbecoming an employee in that on May 11 , 2016 he impersonated a
Company officer to obtain confidential information for personal gain when he contacted Evans Construction to verify d ates and number of hours the company wo rked on Norfolk Southern
property. Cbimant was advised by letter dated J une 14, 2016 that he was found guilty as charged and assessed an actual thirty (30) day suspe nsion.
At the investigatio n the charging officer admitted that he did not draft the charges lodged against the Claiman t and could not remember whether he signed the charges or whether the letter was stamped with his signatur e, never questioned the Claiman t about the incident, went on vacation and had his assistan t remove Claimant from service.
T he main evidence submitted at the investigation were two typed statements from Evans Construction's secretary, who was not present to be cross-examined about the statements. In summar y, the statement relating to Claimant 's phone call said he called Eva ns Construction, spoke to the secretary, iden tified himself by name, stated that he was a " supe1v isor for Ricky Lee" and inquired about dates that the company had done saw cutting for the Carrier.
Aside from the distinction whether Claimant said he was a " supe1v isor for Ricky Lee" or whether he stated that he was a "foreman for the Norfolk Southern" there is no dispute. Claimant readily admitted to making the call and requesting the informa tion. Claimant, his testimony affirms, was trying to ascertain specific dates that the contracto r performed work for the Carrier in order to rebut a rejected time claim. Clain1ant has a contractual right to file suc h claims.
Special Bo:uJ of ,\ <ljusum ·nt No. I114X
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The Jisciplim: assl·s1;nl cannot sr:md. 'flwn.' wen· st:1rcml"Ofs entered into the record upon which rhc hc:Hing offici·r rdictl rhar wnc of spu riou:- pmharin: ,·aluc. Carrier failed to mi·ct it
lmn li:n of pmvin g,1ilt hy suhstantial cvid1:nc(. · n , 1: claim is sustain1:d.
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Claim su:-rainctl in accortl.,nc,: wirh fht· finJ ini:s. Curicr 1:- Jin:ctnl to make this
,\wnr<l effective within tlurry Jars followm the Jatl· that two nwmbc:n. of this Uoar<l
affix rht•ir ignarurc:s rlwrc:w.
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