BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES
and
NORTHEAST ILLINOIS REGIONAL COMMUTER RAILROAD CORPORATION
(Metra)
NMB Case No. 28
This dispute involves Mr. Michael R. Asher employed by Metra as a Machine Operator.
On January 14, 2003, Mr. Asher was assigned to drive a Metra snowplow truck #91061.
Mr. Asher's assignment on January 14, 2003, was to salt and plow Metra lots at Joliet Coach Yard, Blue Island Coach Yard, Blue Island Engineering and CCF.
Between the hours of 9:00 a.m. and 10:00 a.m. on January 14, 2003, Metra truck #91061 was observed by Mr. Dean Cashman, Superintendent of Maintenance for the Worth Park District of Worth, Illinois, coming out of an apartment complex at 11032 76 `h Avenue in Palos Hills, Illinois.
Mr. Cashman thought that it was unusual for a Metra truck to be coming out of a private apartment complex and decided to pull in a parking lot across the street from the complex and observed the operation of the Metra truck.
After observing the activity and operation of the Metra truck, Mr. Cashman notified Metra officials and met with Mr. Moses Richardson, Director of Engineering, Rock Island District, at about 2:00 p.m. on January 14, 2003, to
explain to him what he had observed between 9:00 a.m. and 10:00 a.m. on that date.
On January 22, 2003, Mr. Asher was hand delivered a letter instructing him to attend a formal investigation on Friday, January 31, 2003, for the purpose of developing the facts, determine the cause, and assess responsibility, if any, in connection with his unauthorized use of Metra's time and vehicle #91061 to spread salt in a parking lot of an apartment complex at 11020 through 11032 S. 76`h Avenue in Palos Hills, Illinois, on Tuesday, January 14, 2003.
Mr. Asher was charged with alleged violation of Metra Employee Conduct Rule "Q", Paragraph #1 and Rule "N", Paragraph #3, Item #4.
On January 24, 2003, Mr. Asher was sent a Certified letter, Revised Notice of Investigation, which added an additional charge of Metra Safety Rule 1.19.
The letters of January 22, 2003, and January 24. 2003, to Mr. Asher are attached to this Award.
Mr. Asher was also sent a letter dated January 22, 2003, from Mr. Moses Richardson, removing him from service pending the investigation of the alleged incident involving Mr. Asher occurring on January 14, 2003.
Mr. Richardson's letter of January 22, 2003, to Mr. Asher is attached to this Award.
At the request of the Organization, it was mutually agreed to hold the investigation on January 30, 2003, and it was held on that date.
Following the investigation held on January 30, 2003, Mr. Asher received a Notice of Discipline letter dated February 7, 2003, dismissing him from service for violation of certain Carrier Rules and Regulations. The Notice of Discipline letter dated February 7, 2003, is attached to this Award.
The transcript of the investigation held on January 30, 2003, 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.
This dispute centers on an incident occurring on January 14, 2003, when Metra truck #91061 being operated by Mr. Michael Asher, the Claimant in this dispute, was observed by Mr. Dean Cashman, Superintendent of Maintenance for the Worth Park District of Worth, Illinois, entering and exiting an apartment complex at 11020 and 11032 76 `h Avenue in Palos Hills, Illinois.
Since Mr. Cashman was the person who observed and reported the incident to Metra officials, we deem it appropriate to quote from his transcript testimony at the January 30, 2003, investigation.
I seen the truck coming out of the parking lot and thought it was unusual that a Metra truck would be coming out of a private-not a Metra parking lot.
I pulled in the hardward store parking lot, turned around, went back, parked in the parking lot across the street by the church and watched the truck come out of the north driveway, turn and go south on 76 `h Avenue approximately to 11020.
As he turned and went in the south driveway, he turned the salt spreader back on and continued to the back of the property with the salt spreader running.
A When he came out of the north entrance, he was running the salt spreader. He shut it off on the road and then turned it back on when he went back into the loop, to the horseshoe.
A I called the Village of Worth, the Village Clerk, and she gave me a number at Metra, and I contacted - I can't think of his name now. I don't remember what his name was, but he in turn put me in contact with Moses Richardson.
MR. POWELL: I have no further questions of Mr. Cashman at this time, subject to redirect. You are free to question him.
Q Mr. Cashman, could you explain for me what loop the driveway makes? I just didn't quite understand that. You saw the truck going in at 11032?
The two long runs of the parking lot are east/west, and they connect in the back north/south. So it is a pretty good size horseshoe.
When I first saw the truck, it was coming out of 11032. It turned right on 76 `h Avenue, which put it going south, drove down to 11020, made another right turn, which put it going west, turned the salt spreader back on and continued to the back of the property.
At that point, at the back of the property, it makes a loop going north to come back around to come out. It is a big circle is what it is with the street. The property itself is a horseshoe.
Q You have heard testimony earlier that you were seen salting the roadways and parking lots in that area. You are saying that you did not do that?
A Earlier in the day before the starting time, Mr. Marty DeVito was looking around the shop for his keys, and he had lost his keys.
And after I finished Joliet, we started - we didn't get an early call for snow, so everybody was kind of behind, and we was all kind of behind, and everywhere I went was really slick.
So after I got done at Joliet, I come down 6 to Southwest Highway, and I went by 179`h Street, the Orland Park maintenance facility, to check and see if it was done.
Being on a weekday, I didn't think it was a good idea to get on the expressway.
MR. GRANIER: Excuse me. Could you please shut that phone off?
A I didn't think it was a good idea to get on the expressway. It seems like in a Metra vehicle, you are a target out there.
An so I went on down Southwest Highway. It is a direct route that goes northeast directly to CCF, which was my last stop for the day.
And after I went by 179`h Street, it kind of clicked in my head, and I was checking the other stations on the route, and it kind of clicked in my head about Marty's keys.
I thought maybe he had dropped them, so I would swing in there and check and see if I could spot them, and that's the reason I was there.
A There was Metra shop keys on the ring. There was locks to the tool cabinets on the ring. And to be honest with you, that's why I was so disturbed about it because I knew what keys he had.
And just recently, we had had a theft in a track shop to where they stole company radios and equipment and so forth, and you never know what happens when something like that gets in the wrong hands.
A No. We all got out of there pretty early in the morning right directly after. Right directly after Dave told us we was doing snow duty, we all went our separate ways.
And like I said, the only reason I thought about it is because it was on the route, and it kind of clicked in my head. But no, I did not speak with Marty before I went in there.
A Where does Southwest Highway? If you're coming out of the Joliet Coach Yard heading west, you run directly into Route 6. Route 6 turns into Southwest Highway.
A It is absolutely a direct route. Then from Kedzie, you pick up Archer. That runs right into CCF. It is an absolutely direct route, without a doubt.
A As far as my daily, what I done, I went out and started the truck and the skidster. I put the truck over by the salt pile, went and got the skidster and loaded it up with salt.
I done Blue Island Engineering around the building here. I done the trainman's parking lot at Vermont Street, and I done Blue Island Tower.
I come back, and I reloaded and headed to Joliet. After I done Joliet, like I said, traffic was pretty bad, so I did take the expressway to Joliet. But coming back towards Chicago, it was backed up like it normally is, so I took Southwest Highway.
And from there, I went by 179`" Street, and those guys had salted 179`h Street already and 153. I did not go by Palos because it is an elevated platform, the same as Worth.
But from 153`°, I headed straight directly towards CCF. And somewhere in that time period is when the situation with Marty's keys popped in my head.
A I inspected it. I didn't end up salting. Actually, I didn't salt the maintenance facility. I did end up dropping salt in from of the trailers for the capital guys down there directly right at 179`" Street and got back on Southwest Highway from there.
The maintenance facility had already been salted. Whether it was done by our forces or the mechanical or the contractors, I can't say. All I know is that it had been salted already.
A Yes, sir, there is. But however, my instructions are I have a list, the list that you see on my time sheet, and to help out wherever I can because I have a broad list of duties, being the only big truck that we have.
A Yes, sir. It was before the end of the day. I got back here somewhere around noon and cleaned my truck and washed out the spreader.
And when Marty come back in, I gave him his keys and told him that I found them, naturally.
MR. GRANIER: Let the record reflect that Mr. Archer was referring to Exhibit Number 5 of 6, the diagram.
MR. POWELL: I have no further questions at this time, subject to redirect.
Q Mr. Asher, you heard testimony that you had two people in the truck that day from Mr. Cashman. Did you have someone else in that truck that day?
A No, sir. Mr. Petty was on vacation at the time, and Mr. DeVito had a shortage of people. He had two or three - I think it was two guys that didn't show up on his gang, and he went withi his crew to the Heritage Corridor, I believe. Summit, he started there, I believe.
Mr. Cashman testified that he first saw you leaving the address at 11030, getting onto 76 `h Street, turning south, going to 11020 and going back into the parking lot.
And then when he saw your truck reappear on the other side of the building on 11030, he left and went to the hardware store, I believe his testimony was.
I came directly off of Southwest Highway, which runs just to the west of this parking lot. And if you turn in at the bowling alley, there's a direct entrance to the back of the complex, which is where I found the keys at.
MR. GRANIER: If I may, can Mr. Asher draw Southwest Highway on this diagram that is Number 5 of 6?
A Southwest Highway runs as so. Here is the apartment complex. You had parking spaces here. You have a bowling alley. You have a road that runs directly off of Southwest Highway that leads into the back of this complex. You come in here. The keys were laying approximately right here. (Indicating.)
I ~icked up the keys, came out onto 76'h Avenue, I believe it is. 76` Avenue runs directly back into Southwest Highway. I come off of 76`h Avenue and headed north onto Southwest Highway, and that was it. I was in there approximately a minute and a half, two minutes at the most.
Q Mr. Asher, the length of the parking lot has been stated at approximately 150 yards and approximately 300 yards for the two driveways.
Are those approximate distances in your mind or would you add or subtract to that?
A To be honest with you, as far as numbers, I couldn't tell you, but it is approximately the same distance as this here. (Indicating.)
It is apparent that there are two different versions of what took place on January 14, 2003, at the site of the incident.
Mr. Cashman in his testimony stated that he noticed something unusual was taking place at the apartment complex in Palos Hills and took the time to report to Metra officials the activity of Metra vehicle #91061.
Additionally, Mr. Cashman took the time to appear at the investigation held on January 30, 2003, and testified as to what he had observed on January 14, 2003.
Mr. Asher in his testimony admitted that he was in the parking lot at the apartment complex where he was observed by Mr. Cashman. Mr. Asher testified that his reason for being there was that he was looking for a co-worker's keys.
Mr. Asher testified that he exited the apartment complex on the 76`h Street side and did not spread any salt.
Mr. Cashman testified that the Metra truck came out on the 76`h Street side and re-entered the apartment complex and the truck was spreading salt in the driveway of the complex.
Mr. DeVito testified at the investigation that he did not request Mr. Asher to look for his keys.
In response to a question from Mr. Powell, the Hearing Officer, if there was a rear entrance to the complex by a bowling alley, Mr. DeVito stated that there was no rear entrance to the complex.
Mr. DeVito on being questioned by the Organization's Representative changed his story and stated that there was a rear entrance by the bowling alley on Southwest Highway.
In our review and reading the entire record in this dispute, we find no basis for questioning the testimony of Mr. Cashman, the witness who had nothing to gain or lose by this proceeding.
The Organization was not successful in their attempt to discredit Mr. Cashman's testimony.
Mr. Cashman, by virtue of his position and experience with the Worth Park District, had the expertise and knowledge of snowplow and salting operations.
Mr. Cashman testified with authority as to how they are operated and most certainly could tell by his observation of Metra vehicle #91061 if the salt spreader was spreading salt.
Mr. Asher in his testimony admitted that he was in the apartment parking lot complex where he was observed by Mr. Cashman; however, his testimony as to why he was there with the Metra truck, which was not part of his assignment for the day, is questionable.
The other question that disturbs us is whether there is a rear entrance by a bowling alley to the complex. Mr. Asher said yes and Mr. DeVito initially said no but changed his story on further questioning by the Organization's Representative, Mr. Granier.
In our review of the record and the investigation transcript, we find no evidence of any procedural defects or any arbitrary or unreasonable actions on the part of the Carrier.
Accordingly, based on the record, it is the decision of this Board that the Claimant was guilty as charged by the Carrier and there is no basis for our overruling the discipline of dismissal of Mr. Asher in this dispute.
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