SPECIAL BOARD OF ADJUSTMENT NO. 1122
BROTHERHOOD OF MAINTENANCE )
OF WAY EMPLOYEES )
and ) AWARD NO. 60
CASE NO. 60
NORTHEAST ILLINOIS REGIONAL )
COMMUTER RAILROAD - METRA )
STATEMENT OF CLAIM:
Claim on behalf of A. Irvin, B&B track foreman, for expungement of discipline
assessed, payment for all time lost, and reimbursement for benefits lost during time
withheld from service.
FINDINGS:
Special Board of Adjustment No. 1122, upon the whole record and all the
evidence, finds that the parties herein are Carrier and Employees within the
meaning of the Railway Labor Act; as amended; that the Board has jurisdiction
over the dispute herein.
The Claimant worked as a Track Foreman headquartered at the 471h Street
yard in Chicago, Illinois. He worked under the supervision of R. Worley. The
Claimant's tour of duty was Tuesday through Saturday, 7:00 am to 3:30 pm.
On Sunday, May 17th, 2009, Claimant and his gang were assigned to work
overtime. Claimant left around noon.
At approximately 6:00 pm, Claimant was detained by Blue Island police, who
noticed that he was driving a Metra backhoe on Western Avenue in Des Plaines,
Illinois. Metra Police Sergeant W. Pugh was contacted and when he arrived at the
scene, he asked the Claimant why he was driving a piece of heavy equipment on the
highway on a Sunday evening. The Claimant responded that he was working
overtime. The record shows that the Claimant had earlier called a co-worker, asking
him to verify that the backhoe was being used for work-related purposes on
overtime. The co-worker refused.
Sergeant Pugh contacted Supervisor Worley, who confirmed that the
Claimant did not have permission to remove the backhoe from Metra property.
Claimant then admitted to Sergeant Pugh that he had been using the backhoe at his
private residence to dig a foundation. A Metra police officer was sent to inspect the
Claimant's property. He verifed that digging work had in fact taken place and an
old house was partially torn down.
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In accordance with Supervisor Worley's directive, Claimant was taken out of
service. He was subsequently notified by letter dated May 19, 2009 to attend an
investigation in connection with the events that had taken place. Because the May
19, 2009 notice omitted the date of the incident, a revised notice was sent to the
Claimant by letter dated May 20, 2009, reiterating the charges and including the
date of the alleged incident. The investigation was held on May 2"T, 2009, after which
time the Carrier determined that the Claimant was guilty of the charges. Claimant
was removed from service effective June 8, 2009.
At the hearing, Claimant acknowledged that he took the Metra backhoe
without permission. He stated that the contractor who was working on his house left
in the middle of the job, so the Claimant took the backhoe from Metra property to
the work at his residence. Claimant admitted that he made a mistake and
apologized for the incident. In addition, Roadmaster J. Jachna testified on his
behalf, stating that the Claimant was a very reliable and responsible employee who
could be counted upon to report for snow duty and unanticipated overtime, even
when he was on vacation. The record further shows that the Claimant has had an
exemplary record since he began his employment with the Carrier in September
2001.
The Board has reviewed the record in its entirety and has thoroughly
considered all the evidence and testimony presented. There is substantial evidence,
including the Claimant's own admission, to support the conclusion that the
Claimant took a backhoe off Carrier property for personal use without
authorization. This serious error of judgment was exacerbated when the Claimant
untruthfully claimed to be working overtime when he was discovered driving the
backhoe on a commercial street. Claimant compounded the misconduct even
further when he attempted to get another employee to lie for him. These significant
transgressions were a breach of acceptable employee behavior. Discipline clearly
was warranted.
This Board recognizes that the Claimant has an excellent service record and
we are not unsympathetic in light of this mitigating circumstance. However, the
Carrier cannot operate if its employees take machinery for their own use with
impunity. Dishonesty and misappropriation of goods constitute unacceptable
conduct which have long been considered dismissable offenses in this industry. The
Claimant was afforded a fair and impartial investigation and there are no due
process or procedural defects which would serve to vitiate the discipline imposed.
Based on these factors we do not find any justification for concluding that the
Carrier's assessed discipline was an arbitrary or unreasonable determination.
SBA No. 1122
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Claim denied.
Dated this 30`h day of August, 2009.
Award No. 60
Case No. 60
AWARD
ANN S. KENIS
Neutral Member