BEFORE SPECIAL BOARD OF ADJUSTMENT NO. 1122
BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES
and
NORTHEAST ILLINOIS REGIONAL COMMUTER RAILROAD CORPORATION
This dispute involves Mr. Antonio Huerta employed by Metra as a
Trackman.
Mr. Huerta was sent a letter dated May 23, 2002, instructing him to attend a
formal investigation on Thursday, May 30, 2002, for the purpose of developing
the facts, determining the cause and assess responsibility, if any, in connection
with the alleged theft of company material, failure to follow instructions regarding
his work assignment that day, failure to devote yourself to your duties, theft of
time, and possession of company material without authorization, when on
Thursday, May 16, 2002, you were observed off your work assignment in the
vicinity of 7802 S. Greenwood Avenue, Chicago, Illinois, at approximately 8:30
a.m. using a company vehicle and company tools to reduce company material to
scrap.
Mr. Huerta was charged with possible violation of Metra Employee
Conduct Rule Nos.: K (Para. 2), N(4), Q (Para. 1), and Maintenance of Way Rule
1.15.
The letter of May 23, 2002, to Mr. Huerta calling for the investigation and
the specific charges of Carrier Rule violations is attached to this Award.
The record shows that Mr. Huerta was hand-delivered a letter dated May
16, 2002, from Mr. W.T. Archer, Director of Engineering Metra Electric District,
removing him from service immediately pending the investigation to be held on
May 30, 2002. The removal from service letter of May 16, 2002, is attached to
this Award.
The investigation was held as scheduled on May 30, 2002.
Following the investigation, Mr. Huerta received a Notice of Discipline
letter dated June 14, 2002, dismissing him for service effective on June 14, 2002,
for violation of NIRCRC Rules on the date of the incident occurring on May 16,
2002.
The Notice of Discipline letter dated June 14, 2002, is attached to this
Award.
The transcript of the investigation held on May 30, 2002, provides the basis
for this Board's adjudication of this dispute.
This dispute is before this Special Board of Adjustment established by
agreement between the Brotherhood of Maintenance of Way Employes and the
Northeast Illinois Regional Commuter Railroad Corporation (Metra) dated
November 12, 1999. SBA No. 1122.
FINDINGS:
This dispute involves an incident occurring at 8:30 a.m. on May 16, 2002,
when Mr. Fred Leonard, Chief of Police for Metra, was making a routine station
inspection at 79`h and the Metra Electric Mainline.
While on the platform at 79`h Street, Mr. Leonard observed a white pickup
truck parked along the east side of the Metra Electric right of way at
approximately 78th Street.
The testimony of Chief Leonard in the investigation transcript clearly
details what he observed and what took place on the day of the incident. For the
record, we are quoting Chief Leonard's testimony from pages 15, 16 and 17 of the
investigation transcript:
W.T. Archer F. Leonard
Q. Chief, could you tell us in your own words what happened that morning?
A. Yes, that morning I was doing a station inspection at 79'" and the Metra
Electric Mainline, at approximately 0829 hours. While on the platform at 79'"
Street, I observed a white pick-up truck parked along the east side of the Metra
Electric right of way at approximately 78`° Street, and I saw three (3) individuals
around the truck and at the time, thought that to be a very natural thing. I
considered them to be employees working there.
However, after remaining on the platform for a couple minutes, I observed the
subjects remove some type of piece of equipment from the truck. I couldn't tell
exactly what it was from that point, and they proceeded to walk eastbound up
over a berm, separating Metra property from private property, along the east side
of the right of way. They disappeared from my view for a period of time.
However, occasionally I would see one subject come to the top of the berm and
then return to the east side of the berm.
I watched this activity for approximately twenty (20) minutes, then 1 returned to
the street, got in my vehicle and drove up onto the right of way along the east
side and proceeded northbound, pulling up in back of the white pick up truck that
was parked there.
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As I did, I observed Mr. Bettis on top of the berm with a white piece of
aluminum, what appeared to be a silver pipe of some type. He dropped the pipe
and walked westward down the ...off the berm and onto the right of way. He
proceeded to walk north for a while, then turned around and came back south. I
walked up onto the berm and observed Mr. Matthies and Mr. Huerta at the
bottom of the east side of the berm. Mr. Huerta was in the process of using, what
appeared to be, a track saw to cut aluminum ...or what appeared to
be ...aluminum piping, located on private property off on the east side of the
berm.
Mr. Matthies came to the top of the berm. 1 told him to call Mr. Huerta to the top
also and bring the saw with him. All of us then proceeded to go down to the west
side of the berm, back onto Metra property.
While I was on the top of the berm, I was able to see numerous, what appeared to
be some type of electrical connectors, scattered over a seventy-five (75) to one
hundred (100) foot area. Also, a large quantity of what appeared to be aluminum
pipe of some type, on top of the berm and also on the east side of the berm.
I...when the three (3) employees reached the west side of the berm, were back on
Metra property, I asked them to produce I.D. cards. They produced their Metra
Employee I.D. Cards. I asked Mr. Matthies who he worked for. He said he
worked for Mr. Stuckey. I contacted our communications center from my car
and asked them to contact Mr. Stuckey and anyone else that needs to be informed
of an irregularity that was in progress.
While I was in my car, seated in my car with the driver's door open, Mr.
Matthies came up to me and squatted down by the side of the car and asked me if
there was some way we could mke this go away, just forget the whole thing, and
he'd replace all of the scrap material, and I said, "No".
After a few minutes, a second car arrived at my request and we all stood by and
waiting for other Metra officials to make proper identification of the items that
were located. At that point, Captain Dorsey transported the three (3) individuals
to KYD and were turned over to the proper authorities.
Q. All the pictures that you referred to previously, they are of the scene and the
area that you just described in your testimony?
A. That's correct.
It is clear from the testimony of Chief Leonard that Track Foreman Richard
Matthies, Trackman Antonio Huerta and Trackman Charles Bettis were the three
(3) Metra Employees at the site of the incident that took place at 79`h Street.
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The testimony of Roadmaster Mr. M.J. Stuckey under whose supervision
Mr. Matthies, Mr. Huerta and Mr. Bettis worked, revealed that at the regular
morning job briefing on May 16, 2002, Foreman Matthies, Trackman Huerta and
Trackman Bettis were assigned to do general switch maintenance in the CTC
territory.
The record reveals that Roadmaster Stuckey and Director W.T. Archer,
M/E Engineering Department, both responded to the call from Chief Leonard and
drove to the scene of the incident, observed what had taken place and returned the
(3) three employees to KYD where they were given a letter removing them from
service and escorted off the property.
From our review of the transcript testimony of all who testified at the
investigation on May 30, 2002, there is no dispute as to what took place. Foreman
Matthies testified that he, Mr. Huerta and Mr. Bettis were assigned on May 16,
2002, to work on switch maintenance in the yards in CTC territory.
Foreman Matthies testified that they did not perform their assigned duties
in the CTC territory but went to 79`" Street to cut up scrap.
Trackman Huerta testified that he was cutting up scrap at 79`" Street when
observed by Chief Leonard on May 16, 2002.
In response to a question from the Hearing Officer on page 35 of the
transcript as to how do you account for the copper and aluminum material that was
in the back of the company truck, Mr. Huerta's response was "There was. . .over at
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the KYD, there was a lot of copper on the ground and. . .I guess you could call it
temptation, we picked it up and put it in the truck."
It was in the process of cutting up the scrap material that the (3) three
employees charged were noticed by Chief of Police Leonard who drove to the
scene; and after observing what was taking place, he called Roadmaster Stuckey
and Director Archer, M/E Engineering Department, who both went to the scene,
identified the employees and took action to remove them from service pending the
investigation which was called for and held on May 30, 2002.
The record and testimony in the investigation transcript confirm that Mr.
Huerta violated the Carrier Rules as charged by the Carrier.
We can find no fault with the procedures followed by Carrier officials in
responding to the incident and in their conduct of the investigation. The
investigation was held in a fair and impartial manner.
In reviewing the transcript, it is noted that Carrier officials Stuckey and
Archer testified that Mr. Huerta was a valued employee. A review of his personal
employment record reveals no prior discipline during his many years of
employment.
However, based on the nature of the offense involved in this dispute, the
obvious disregard for following instructions for the work assignment for the day
and the mass of evidence describing the scrap materials that were being cut up and
in the truck, negates any consideration by this Board for any leniency in this
decision.
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Accordingly, there is no basis for overturning the Carrier decision of the
dismissal of Mr. Huerta from service.
AWARD:
Claim denied.
Charles J. he' amberlain
Neutral Member
Date
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Metra KYD Facility
12301 S. Indiana Avenue
Chicago, IL 60628
May 23, 2002
R. E. Matthies, 4657
9431 Oreole Drive
Munster, IN 64321
FED EX #823686995076
Gentlemen:
A. I. Huerta, 5317
10446 So. Ave. "L"
Chicago, IL 60617
FED EX X823686995087
C. Bettis, 4649
1310 Portland Ave.
Chgo. Hts., IL 60411
FED EX ,8236869905098
Arrange to attend a formal investigation to be held in the KYD Conference Room,
12301 S. Indiana Avenue, Chicago, IL 60628, at 8:00 a.m., Thursday, May 30,
2002.
The purpose of this investigation is to develop the facts, determine the cause,
and assess responsibility, if any, in connection with your alleged theft of
company material, failure to follow instructions regarding your work assignment
that day, failure to devote yourself to your duties, theft of time, and
possession of company material without authorization, when, on Thursday,
May 16, 2002, you were observed off your work assignment in the vicinity of
7pn2 S..Greenwood Avenue, Chicago, IL, at approximately 8:30 a.m. using a
c Zany vehicle and company tools to reduce company material to scrap.
In connection therewith, you are charged with possible violation of Metra
Employee Conduct Rule Nos.: K (Para. 2), N(4), Q (Para. 1), and Maintenance of
Way Rule 1.15.
You may be represented at the subject investigation as provided for in your
labor agreement, and you will be afforded the opportunity to present evidence
and testimony in your behalf and to cross examine any witnesses testifying.
Your past personal record may be reviewed at this investigation (copy
attached).
Sincerely,
Attachment
cc: V.
W.
R.
C.
J.
D.
W. T. Archer
M/E Engineering Department
L. Stoner
K. Tupper
C. Schuster
Cary
Barton
Mogan
Kd\('.\DOCS\INVFSTIG\f.ETINV.'fNK
G. Washington
H. Thomas
H. J. Grainier, G/C
R. Hooker, L/C
F. Leonard - Please arrange to
M. J. Stuckey - attend as company
G. Collins -witnesses.
Metra is the registered service mark for the Northeast Illinois Regional Commuter Railroad Corporation.
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Metra KYD Facility
12301 S. Indiana Avenue
Chicago, IL 60628
May 16, 2002
HAND DELIVERED
Mr. Antonio I. Huerta Emp. #5317
10446 South Avenue "L"
Chicago, IL 60617
Dear Mr. Huerta:
You are hereby removed from service, effective immediately,
pending an investigation for your alleged violation of Metra's
Employee Conduct and Maintenance of Way Rules.
Please turn in all Company property, keys, passes, and
identification cards issued to you to Mr. W. T. Archer, Metra
Electric District.
Sincerely,
W. T. Archer
Director of Engineering
Metra Electric District
cc: V. L. Stoner
W. K. Tupper
R. C. Schuster
G. Washington
C. Cary
J. Barton
D. S. Mogan
N. Petrowski
F. Leonard
M. J. Stuckey
H. J. Granier, G/C
T. P. Petty, L/C
kJ\C\D(N'S\INVESTIG\O(15.AN
Metra a the registered service mark for the Northeast Illinois Regional Commuter Railroad Corporation.
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NORTHEAST ILLINOIS REGIONAL COMMUTER RAILROAD CORP.
NOTICE OF DISCIPLINE
W. K. Tupper, Chief Ena. Officer
FED EX
TRACKING
NUMBER: 823686995113
SUPERVISOR ASSESSING DISCIPLINE
547 W. Jackson Blvd., 7th Floor
WORK LOCATION
June 14, 2002
DATE
A.
I. Huerta, Emp. 5317
EMPLOYEE NAME
(TYPE OR PRINT)
U Formal Investigation o Waiver of Formal Investigation (check proper box) has indicated your
responsibility for violation of NIRCRC Rules in the following incident (describe):
Theft of company material, failure to follow instructions regarding work assignment,
failure to devote yourself to your duties, theft of time, and possession of company
material without authorization, when on Thursday, May 16, 2002, you were observed off
your work assignment in the area of 7802 S. Greenwood Ave, Chicago, IL., at approximately
8:30 a.m., using company tools and vehicle to reduce company material to scrap.
Therefore, you are assessed the following discipline which will also be entered into your
personal employment record (check appropriate box or boxes).
a 1.Formal reprimand (letter attached).
o. If you waive investigation, the reprimand letter will be effective for one year.
0
2.Three work days deferred suspension [this suspension will remain deferred for 2 years
and will be served as actual suspension if further discipline is assessed during that period.]
o If you waive investigation, one work day of deferred suspension is assessed instead of
three work days.
SBA
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3.Five work days actual suspension.
o If you waive investigation, three work days of suspension will be served instead of five
work days,
lest
the deferred days from Step 2.
o Your record indicates deferred suspension of work days which was assessed on
and must be served in conjunction with discipline noted above.
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4. Ten work days actual suspension.
o If you waive investigation, seven work days of suspension will be served instead of ten
work days.
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5. Period of Suspension (if applicable).
Supension from your job assignment will begin on and will end
You must return to work on . Failure
to return on that date will be regarded as an unauthorized absence.
6. Dismissal. Your employment with this corporation is terminated effective
June 14, 2002
(date). You must immediately return all company
property.
8:15 a.m. June 14, 2002
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Time Date Signature & title o pvr assessing discipline
Employee
Union Witness
cc: Metra Personnel
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