NATIONAL MEDIATION BOARD

SPECIAL BOARD OF ADJUSTMENT NO. 1112






          BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES


CASE NO. 113

AWARD NO. 114

CLAIMANT: B. MCLAUGHLIN


On July 29, 1998, the Brotherhood of Maintenance of Way Employes ("Organization") and the Burlington Northern Santa Fe ("Carrier") entered into an Agreement establishing a Special Board of Adjustment in accordance with the provisions of the Railway Labor Act. The Agreement was docketed by the National Mediation Board as Special Board of Adjustment No. 1112 ("Board").

 This Agreement contains certain relatively unique provisions concerning the processing of claims and grievances under Section 3 of the Railway Labor Act. The Board's jurisdiction was limited to disciplinary disputes involving employees dismissed, suspended, or censured by the Carrier. Moreover, although the Board consists of three members, a Carrier Member, an Organization Member, and a Neutral Referee, awards of the Board only contain the signature of the Referee and they are final and biding in accordance with provisions of Section 3 of the Railway Labor Act.

 Employees in the Maintenance of Way craft or class who have been dismissed or suspended from the Carrier's service or who have been censured may choose to appeal their claims to this Board. The employee has a sixty (60) day period from the effective date of the discipline to elect to handle his/her appeal through the usual channels (Schedule Rule 40) or to submit the appeal directly to this Board in anticipation of receiving an expedited decision. An employee who is dismissed, suspended, or censured may elect either option. However, upon such election that employee waives any rights to the other appeal procedure.

 This Agreement further established that within thirty (30) days after a disciplined employee notifies the Carrier Member of the Board, in writing, of his/her desire for expedited handling of his/her appeal, the Carrier Member shall arrange to transmit one copy of the notice of the investigation, the transcript of the investigation, the notice of discipline and the disciplined employee's service record to the Referee. These documents constitute the record of the proceedings and are to be reviewed by the Referee.

 The Agreement further provides that the Referee, in deciding whether the discipline assessed should be upheld, modified, or set aside, will determine whether there was compliance with Schedule Rule 40; whether substantial evidence was adduced at the investigation to prove the charges made; and, whether the discipline assessed was arbitrary and/or excessive, if it is determined that the Carrier has met its burden of proof in terms of guilt.

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                                              S.B.A.1112

                                              Case 113

                                              Award 114

In the instant case, this Board has carefully reviewed each of the above-captioned documents prior to reaching findings of fact and conclusions.

 The Carrier hired Claimant Bryan McLaughlin on or about April 24, 2004 as a Gang Trackman in Alliance, Nebraska. At the time of the incident leading to the instant Discipline, Claimant was working as a Sectionman in Thedford, Nebraska. Prior to the incident leading to his Dismissal, Claimant had received no disciplines (See Case No. 112, Decision 113)

 On August 21, 2008, Claimant allegedly engaged in dishonest activity when, according to the Carrier, he allegedly falsified his hours for August 21, 2008. The Carrier claims that Claimant was paid for 8 hours of straight time and 3 hours of overtime on that date. However, Claimant only worked 4 hours of straight time. According to Claimant, he had no intention of deceiving the Carrier. Claimant admitted that he had only worked 4 hours and did not notify the relevant personnel. Claimant did not recall indicating that he had worked overtime on that day.

 By letter dated September 3, 2008, the Carrier notified Claimant that he was to attend a formal Investigation "... for the purpose of ascertaining the facts and determining your responsibility, if any, in connection with your alleged dishonesty when you reported your hours worked for August 21, 2008, while assigned as a Sectionman on Gang TMGX1080, temporarily headquartered at Thedford, Nebraska." The Hearing took place on September 17, 2008. Pursuant to that Investigation, by letter dated October 14, 2008, Claimant was notified that he was being dismissed as result of a violation of MOW Operating Rule 1.6 Conduct, Dishonesty, effective October 31, 2004. By notice dated October 16, 2008, Claimant exercised his right to appeal the decision to Special Board of Adjustment 1112.

 According to the Organization, the Discipline imposed upon Claimant was unwarranted and excessive. The Organization contends that the burden of proof in a discipline matter such as this is on the Carrier; that burden of proof has not been met. The Organization contends that the Carrier has abused its discretion and that the Carrier's determination to discipline Claimant was based on inconclusive evidence. The Organization further claims that Claimant had no intent to deceive the Carrier. Claimant admitted that he only worked 4 hours on the date in question. The Organization asserts that the Carrier should now be required to overturn Claimant's Discipline and make Claimant whole for all losses. In the alternative, the Organization asks that the Carrier be limited to recouping (from future income) the amount of excess income that Claimant allegedly improperly earned.

 Conversely, the Carrier takes the position that it has met its burden of proof. Claimant was afforded a fair and impartial Hearing in accordance with the requirements of the Agreement. According to the Carrier, a review of the transcript makes it clear that Claimant was guilty as charged of Dishonesty in reporting his hours worked for August 21, 2008. Claimant only worked 4 hours, but was paid for 8 hours of straight time and 3 hours of overtime. According to the Carrier, not only did Claimant not inform his foreman that he had worked only 4 hours that day, but in addition, reported that he had worked 3 hours of overtime. Based on Claimant's offense, Dismissal is the appropriate penalty.

In discipline cases before this Special Board of Adjustment, the Board sits as an

appellate forum. We do not weigh the evidence de novo. As such, our function is limited to the


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                                              S.B.A.1112

                                              Case 113

Award 114 question of whether the discipline assessed should be upheld, modified, or set aside. This Board must determine whether there was compliance with Schedule Rule 40; whether substantial evidence was adduced at the investigation to prove the charges made; and, whether the discipline assessed was arbitrary and/or excessive, if it is determined that the Carrier has met its burden of proof in terms of guilt.

 After a complete and thorough review of the record, this Board has found substantial evidence in the record to sustain the Carrier's position that Claimant was dishonest in reporting his hours for August 21, 2008. It is clear that Claimant only worked 4 hours, but was paid for 8 hours of straight time and 3 hours of overtime. Further, the Carrier has proven that Claimant was dishonest in that he indicated that he had worked 3 hours of overtime. Based on the offense, this Board cannot find the penalty to be unreasonable and will not overturn said Discipline.

    Claim denied.


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                            S.B.A.1112

                            Case 113

                            Award 114


        AWARD


      Claim denied.

    Steven °~n°~'~sy="~°

            Bieriq


    Bierig


Steven M. Bierig

Chairperson and Neutral Member

S.B.A. 1112


Dated: April 10, 2009

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