BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES
and
NORTHEAST ILLINOIS REGIONAL COMMUTER RAILROAD CORPORATION
(Metra)
The Notice of Investigation letter of November 17, 2003, is attached to this Award.
The investigation was postponed until December 16, 2003, at the request of Mr. Mark Wimmer, General Chairman for the Brotherhood of Maintenance of Way Employes, who represented Mr. Holmes.
The investigation was again postponed to January 8, 2004, by mutual agreement between the Carrier and Organization.
Following the investigation, Mr. Holmes received a Notice of Discipline letter assessing Ten (10) work days suspension - Step #4 of the Carrier's Progressive Discipline Policy.
The transcript of the investigation held on January 8, 2004, 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.
Mr. Holmes was instructed by Mr. Dan Colantuono, B&B Capital Supervisor, to perform work with his crew on a road crossing project at Prairie Crossing on November 8, 2003.
The work assignment included the pouring of two 24 foot long concrete pours. The work was performed by Mr. Holmes and his crew on November 8, 2003.
Mr. Holmes was assigned by Mr. Colantuono to perform various duties on November 9, 2003, which included picking up certain tools which were to be used on a project on Monday, November 10, 2003.
On November 10, 2003, Mr. Colantuono reviewed the time sheets submitted by Mr. Holmes for himself and his crew for the work performed on Saturday, November 8, 2003, and noted that the time sheet listed 12 hours for Mr. Holmes and each member of his crew - 6:00 a.m. to 6:00 p.m. Mr. Colantuono questioned the amount of hours that was turned in by Mr. Holmes for himself and crew, and Mr. Holmes stated that it was snowing, and he could not finish the concrete because he had to put the tarps down.
Mr. Colantuono then personally went to each member of Mr. Holmes' crew, and they told him that they worked until approximately 3:30 p.m. on Saturday, November 8, 2003.
Six members of Mr. Holmes' crew later signed statements that they worked from 6:00 a.m. to 3:30 p.m. on November 8, 2003, which confirmed what they had told Mr. Colantuono on November 10, 2003.
The issue in this dispute centers on the time sheet (Engineering Department Work Report) submitted by Mr. Holmes for himself and members of his crew for Saturday, November 8, 2003. Mr. Holmes listed 12 hours of work for himself and all other members of his crew (Exhibit #5 attached). Mr. Holmes indicated on the time report that the entire crew worked from 6:00 a.m. until 6:00 p.m.
Mr. Holmes, as the foreman of the crew, was responsible for accurately reporting the actual time worked by the employees assigned to his crew. In this case, he reported that they all worked until 6:00 p.m. The employees stated that they all left work at 3:30 p.m.
During the investigation, Mr. Holmes and his representative tried to explain away the discrepancy as an inadvertent mistake that perhaps was due to Mr. Holmes' inexperience and/or lack of training. The Board finds no basis for giving any credence to that explanation.
First, there is clear evidence that Mr. Holmes was well aware of when his crew members finished work for the day. He indicated that two of the employees, Eddie Andrade and Sam Zavala actually left the job site at 2:00 p.m. He also indicated that he was with three of the other crew members, Richard Deschner, Dennis Kowalski and Jose Medina, when they finished work and returned to the shop. Those crew members all stated that they left at 3:30 p.m.
Mr. Holmes obviously had no basis for indicating on the time report that the employees on the crew finished work at 6:00 p.m. Even if he worked until 6:00 p.m. himself (and that is far from certain), he knew that the other employees did not. Under the circumstances, it could not be construed as an inadvertent error to give employees credit for that much additional time (four hours for one group and 2.5 hours for another).
Second, it would be less than straightforward to suggest that Mr. Holmes did not understand that he needed to be accurate in reporting his crew's work time or that he needed specific training on that requirement. That is simply not a credible defense.
Based on the evidence, there was nothing arbitrary or unreasonable in the Carrier concluding that Mr. Holmes was less than honest in reporting the amount of time worked by his crew. The record contains substantial evidence to support the charge that Mr. Holmes failed to accurately and honestly report the hours worked on November 8, 2003, and the Board upholds the Carrier's finding of guilt on that charge.
Concerning the charge that Mr. Holmes failed to follow instructions in picking up the tools on November 9, 2003, the record does not contain sufficient evidence to establish that he was guilty of any misconduct in that regard. Kyle Donze, the employee who was providing the tools to Mr. Holmes, summarized the situation best when he stated that there seemed to be a misunderstanding on Mr. Holmes' part. There is nothing in the record that would indicate that Mr. Holmes
deliberately defied his instructions. Accordingly, the Board finds that the Carrier did not meet the burden of proving that particular charge.
With regard to the measure of discipline, there can be no question that dishonesty in any form is a very serious offense. In many instances, employees have been terminated for not accurately reporting time worked. Under the circumstances, the Board cannot find that the Carrier was unreasonable in assessing Mr. Holmes with a ten-day suspension.
Accordingly, based on the record before us, it is the decision of this Board that Mr. Holmes was guilty as charged for his failing to report the correct amount of hours worked on November 8, 2003.
You are hereby instructed to attend a formal investigation which will be held in the office of the Director of Engineering, Milwaukee District, 2931 W. Chicago Ave, Chicago, Illinois 60622, on Tuesday, November 25, 2003 at 9:00 AM.
The purpose forthis investigation is to develop the facts, determine the cause andassess responsibility if any, in connection with your alleged failure to follow instructions from your supervisor, alleged theft of time and alleged dishonesty on November 8, 2003, at Prairie Crossing and your alleged failure to follow instructions on November 9, 2003. When you were allegedly were dishonest in reporting the correct amount of hours worked on November 8, 2003. Also, you allegedly failed to follow your supervisors instruction to pick up all tools from Foreman Donze on November 9, 2003.
In connection therewith you are charged with alleged violation of the following Metra Employee Conduct Rules, General Notice TI, Lines 7, & 3 ; General Notice ITI B paragraph #1 and Rule N, paragraph #3, Item #4.
You maybe represented at this investigation as provided for in your labor agreement, andyour representative will be given the opportunity to present evidence and testimony in your behalf and to cross examine any witnesses testifying against you.
NORTHEAST ILLINOIS REGIONAL COMMUTER RAILROAD CORPORATION
MILWAUKEE DISTRICT ENGINEERING DEPARTMENT
2931 W. CHICAGO AVE., CHICAGO, ILLINOIS 60622
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