SPECIAL BOARD OF ADJUSTMENT NO. 956
BROTHERHOOD OF MAINTENANCE )
OF WAY EMPLOYES )
AWARD NO. 142
and ) CASE NO. 142
NEW JERSEY TRANSIT RAIL )
OPERATIONS, INC. )
The Organization requests that the discipline (30-day suspension) assessed to
Mr. G. Quinones be expunged from his record, and that he be made whole for all
financial losses suffered in connection with this discipline.
FINDINGS:
Special Board of Adjustment No. 956, upon the whole record and all the
evidence, finds that the parties herein are Carrier and Employes within the meaning
of the Railway Labor Act, as amended; that the Board has jurisdiction over the
dispute herein; and that the parties to the dispute were given due notice of the
hearing and did participate therein.
On Sunday, February 11, 2007, Claimant was a Foreman in charge of a gang
performing the replacement and installation of a right hand switch point and stock
rail. The switch point was improperly installed and as a result there was a train
derailment. Subsequent investigation revealed that on Monday, February 12, 2007,
the Claimant submitted an informal time sheet to Track Foreman John Calxaretta
for overtime worked by the crew on Sunday, February 11, 2007. According to the
Carrier, the Claimant recorded eight hours for the entire gang, including Track
Supervisor Donald Berger. During its investigation, Carrier determined that Track
Supervisor Berger left early, after approximately three hours on the job. By notice
dated March 6, 2007, the Claimant was charged with dishonesty and failing to
perform his duties as required under Carrier rules.
A hearing on the matter took place on March 26, 2007. The Claimant
testified that the charges directed against him were false; that he knew Track
Supervisor Berger left early on the morning of February 11, 2007 due to a family
emergency; and that he submitted a sheet of paper with a question mark next to
Berger's name because he was unsure how many hours Berger worked. Claimant
further testified that the rest of the crew worked eight hours, as reflected on the
sheet the Claimant submitted to Track Foreman Calzaretta.
S.B.A. No. 956 Award No. 142
Page 2 Case No. 142
Claimant's testimony is directly at odds with the account given by Track
Foreman Calzaretta, who stated that he received an informal time sheet from the
Claimant on Monday, February 12, 2007 which showed that the entire gang,
including Track Supervisor Berger, worked eight hours. Joe Norell, Assistant
Track Supervisor, was present at the time. He, too, stated that the Claimant
submitted a sheet of paper which showed that Supervisor Berger and all the other
members of the gang worked eight hours on February 11, 2007.
As the Organization points out, the original piece of paper submitted by the
Claimant was not retained by Foreman Calzaretta because he transferred the
information onto a regular form and then inputted the data into the computer. It is
also true that there are discrepancies in the testimony of Norell and Calzaretta as to
the appearance and format of the original sheet of paper prepared by the Claimant.
Overall, however, this case comes down to a credibility determination by the
hearing officer. The Board's function is appellate in nature. We do not resolve
conflicts in the testimony de novo. In the instant case, we must conclude that there is
no proper basis for the Board to overturn the hearing officer's assessment as to
credibility. Norell and Calzaretta insisted that Claimant reported eight hours
worked for the entire crew. The formal time sheets reflect that fact. Moreover, the
Board finds that there was no motive for either Calzaretta or Norell to fabricate a
story out of whole cloth. Finally, the record showed that the formal time sheet was
entailed to the Claimant for his review. Claimant addressed that issue at the
investigation by stating that he does not check his email. Because he was responsible
for reporting the time, however, he knew or reasonably should have known that he
had to check to insure the accuracy of the reported time. Based on all these factors,
there was sufficient evidence for the hearing officer to determine that the
Claimant's claim of innocence was less than credible.
The remaining question concerns the propriety of the penalty. Although the
Claimant contended that he was not the only one who handled the time report, it
must be remembered that he was the individual who was responsible for reporting
the time to the Track Foreman. Neither Track Foreman Calzaretta nor Assistant
Track Supervisor Norell would have known when the switch installation project was
completed or the hours worked by the crew. They took on a good faith basis the
time reported by the Claimant.
The misreporting of time, whether for the direct benefit of the employee or
others, is a very serious offense. We cannot say that the issuance of a thirty day
suspension was unreasonable, arbitrary or capricious under the facts presented.
Accordingly, we must rule to deny the claim.
S.B.A. No. 956 Award No. 142
Page 3 Case No. 142
AWARD
Claim denied.
ANN S. KENIS
Neutral Member
v
II \\~ V
,Car ier Member Organization Mber
Dated this, day of ~~', 2008.