.In the Matter of th~ rbitration Between:
CSX TRANSPORTATION, INC.
(Former Louisville & Nashville
Railroad Company)
NMB Case No. 23
Claim C. A. Morgan
Dismissal
and
BROTHERHOOD OF LOCOMOTIVE ENGINEERS
STATEMENT OF CLAIM: Appeal of C. A. Morgan ID# 202026 for the
discipline of dismissal as a result of the September 7, 2000,
investigation.
The Organization
requests
that
Claimant be
reinstated with all rights and benefits restored,
including
compensation for time lost.
FINDINGS OF THE BOARD: The Board finds that the Carrier and
Organization 1 are, respectively, Carrier and Organization, and
Claimant (s) employees within the meaning of the Railway Labor Act,
as amended,
that this Board is duly constituted and has
jurisdiction over the parties, claim and subject matter herein, and
that the parties were given due notice of the hearing which was
held on January 15, 2001 at Jacksonville, Florida. Claimant was not
present at the hearing. The Board makes the following additional
findings:
The Carrier and Organization are Parties to a collective
bargaining agreement which has been in effect at all times relevant
to this dispute, covering the Carrier's employees in the Engineer's
craft.
Claimant engineer was assigned to Carrier's N&C Subdivision.
He was directed to attend a formal investigation on August 17, 2000
in connection with his alleged misuse of his Corporate Lodging Card
(CLC) while at his home terminal.
According to the record,
Claimant's alleged false testimony during that hearing prompted
Carrier to direct him to attend a second investigation on September
7, 2000 in connection with the following charge:
The purpose of this investigation is to determine the
facts and place your responsibility,
if any,
in
connection with your conduct unbecoming an employee when
you allegedly made false statements, concealed facts
under investigation, were dishonest, marked off under
false pretenses, and willfully neglected your duties as
brought out during your testimony in the investigation
held at Radnor Terminal, at 1000 hours on Thursday,
August 17, 2000, and all circumstances related thereto.
(Carrier Exhibit B2)
PLB No. 6199
Case No. 23, Claim of C.A. Morgan
Page No. 2
Subsequent to the September 7, 2000 hearing, Claimant was
dismissed for violating Operating Rule 501, which states in
pertinent part:
Rule 501
All employees must behave in a civil and courteous manner
when dealing with customers, fellow employees and the
public. Employees must not:
4.
Be disloyal, dishonest, insubordinate, immoral,
quarrelsome, vicious, careless or incompetent.
5.
Willfully neglect their duty.
7.
Make any false statements, or
8.
Conceal
facts
investigation.
concerning
matters under
The core event in this case was Claimant's testimony during
the August 17, 2000 hearing wherein he admitted securing lodging in
Nashville (his assigned horne terminal), and lodging at his away
terminal, from the time he entered engineer training in midOctober, 1999 until mid-June, 2000.
In its investigation of
Claimant's alleged unauthorized CLC use, Carrier matched Claimant's
trips during that period with
CLC receipts, and were generally
part successful in doing so. On a significant number of occasions,
Claimant
incurred
lodging
expenses
at
both
terminals
simul taneously. 1
Carrier did, however, discover a discrepancy in Claimant's CLC
expenditures for June 25, 2000. Road Foreman G.A. Hunt's testified
that Claimant checked into the Best Western Hotel in Paris,
Tennessee (one of his away from home terminals) at 10:45 p.m. on
that date, while payroll records indicated that he had marked off
sick at his horne terminal that morning (transcript of investigation
-c La i.men t ' 5 testimony at page 34
confirms that on a number of occasions,
lodging before going out on a trip. Thus,
at once, and incurred lodging expenses in
of the August 17, 2000 hearing transcript
he did not check out of his home terminal
he was effectively registered in two hotels
both terminals concurrently.
f.
PLB No. 6199
Case No. 23, Claim of C.A. Morgan
Page No. 3
at pages 3 and 4).'
When questioned about this inconsistency
during the hearing, Claimant asserted that the corporate hotel
records were in error, and denied having stayed in Paris on June
25, 2000 at Carrier's expense (T. 13, 14, and 30).
Employee
witness J. W. Cantrell testified that Claimant could not have been
in Paris on the night of June 25, 2000, because he and Claimant
were together "partying" in Nashville.' Carrier based the instant
change upon this alleged false testimony its charge.
During the September 7, 2000 hearing, Claimant maintained that
he had not stayed in Paris on the night of June 25, 2000, but had
partied all night in Nashville with Mr. Cantrell.
He further
alleged that the signature appearing on the Paris Best Western
Hotel register for that night(Carrier Exhibit D) was not his (T.
11) .
Carrier called Terminal Trainmaster Greg Wallen as a witness,
who produced the following sworn and notarized statement from Mr.
Tony Barrow, the second shift desk clerk at the Paris Best Western
Hotel (Carrier Exhibit A13l) :
I, Tony Barrow (given name David A. Barrow) which resides
at 8065 Highway 69N, Cottage Grove, Tennessee, 38224, do
hereby freely give this statement. During the employment
at Best Western, I checked in Carlton Morgan (which I
know by name and face) [sic] did check in on the date in
question.
He used his corporate card at check in and
also therefore we gave him corporate rate and direct
billed it to #421220 or corporate lodging account for CSX
Transportation. He used a dark colored vehicle.
The
co Lor I have no clue but he was by 'himself. At the check
in time he did not write in any train information, and I
asked Mr. Frank Woody about it, and he was surprised at
there not being any.
This incident occurred on my 2 nd
shift, which is the 3-11 p.m. shift. I know that he had
his corporate lodging card due to the fact that I could
not pull the numbers out of thin air. If he did not have
2According to payroll records not in dispute (carrier Exhibit A163), Claimant
worked Train 5646 from Chattanooga to Nashville on June 25, 2000, arriving his home
terminal at 9:31 a.m .. He immediately marked off sick at 9:36 a.m., and was unavailable
for service the remainder of that date (transcript of August 17, 2000 investigation at
page 3).
JOn
testimony,
night" and
at page 25
this point, the Board notes inconsistencies in Cantrell's August 17, 2000
in that at page 24, he testifies that he and Claimant "had gone out that
"got back to the house between 10:00 p.m. and 10:30 p.m.", but later asserts
that they left his house in that same time period and were out all night.
PLB No. 6199
Case No. 23, Claim of C.A. Morgan
Page No.4
his card, I would have had to call Miss Diane Dolliver
for assistance in checking him in on the corporate
lodging machine. The date of this incident was June 25,
2000.
lsi Tony Barrow
Trainmaster Wallen further testified that he interviewed Ms.
Dolliver and another desk clerk, and both were unequivocal; neither
had assisted Mr. Barrow with Claimant's check-in on June 25, 2000.
Conductor Ricky Harris testified that he, too, had stayed at
the Paris Best Western Hotel on the night of June 25 t h •
He
testified that as he was 1eaving'his room on the mOFning of June
zs». hesaw Claimant in the hotel,
Conductor Harris further
testified that on the morning of June 26 t h , the first shift desk
clerk questioned him about Claimant's status because Claimant had
arrived in his personal vehicle, and he had failed to indicate
train information on his registration the previous night (T. 43).
Mr. Cantrell testified at the september 7, 2000 hearing and he
again asserted that Claimant was with him all night on June 25,
2000.
Despi te his repeated previous assertions to the contrary,
Claimant made the following statement at the close of the september
7, 2000 investigation:
I am really tired of this, and so I'm going to do
something that Mr. Sanders [Claimant's representative]
may not want me to do, but I'm going to do it anyway,
because I'm just really tired of this whole situation.
You've questioned me 75 times in the last meeting, 75
times. You asked me 75 questions, not once, as a matter
of fact, not once today, did you ask me if I was in Paris
the afternoon of the 25 t h , and I was (emphasis added).
And I was at the hotel, but I left and I came home,
because somehow Mr. "Barrow inadvertently checked me into
that hotel, and he's trying to cover himself, and that's
wha t happened.'
'Yes, I went down there, I went down there to meet
someone that did not work at the hotel, and I just hung
out at the hotel for a couple of hours.
I left and I
th
went home.
I was there on the 25 , I was not there on
PLB No. 6199
Case No. 23, Claim of C.A. Morgan
Page No. 5
the 26 t h • But I was not there the night of the 25 t h , and
that's what you asked me. u
Based on this admission and because he marked off "under false
pretenses" on June 25, 1999, Carrier dismissed Claimant on
September 27, 2000 for violating Operating Rule 501. A claim for
his reinstatement was presented. This matter could not be resolved
on the property; and it was submitted to the Board for disposition.
POSITIONS OF THE PARTIES: The Carrier initially rejects the
Organization's assertion that Claimant was deprived of due process
because Desk Clerk Barrow was not present at the hearing for
questioning and cross-examination. Carrier note~ that Trainmaster
Wallen specifically requested him to attend, but Mr. Barrow
refused, citing school scheduling conflicts (T. 16). Carrier
further maintains that Mr. Barrow's sworn statement sufficed under
the circumstances, citing Second Division Award 9195 in support.
That Award allowed inclusion of such written statements into an
investigation without their authors being present, especially when
they are not employees of the Carrier and the Carrier lacks
subpoena power (Citation omitted). Carrier contends, in any event,
that the Organization failed to challenge the authenticity of Mr.
Barrow's statement in any material way.
Carrier maintains that the record is clear: Claimant marked
off sick on June 25, 2000 under false pretenses (he admittedly
spent some remaining portion of that day "p<:trtying U ) , checked into
a corporate lodging facility at an away terminal while off duty and
unavailable for duty on that date, and then repeatedly lied about
it.
Carrier rejects Claimant's assertions that the Paris hotel
registration information for June 25, 2000 was erroneous, or that
he just "hung out U there during the day, partiCUlarly in light of
Conductor Harris' eyewitness testimony and Desk Clerk Barrow's
sworn statement to the contrary.
Carrier maintains that Claimant violated Rule 501 when he
"made false statements, concealed facts under investigation, and
was dishonest when he denied staying at the Best Western in Paris,
Tennessee on June 25, 2000" (Carrier submission at 12). Carrier
also points out that Claimant willfully neglected his duties when
he marked off "under false pre t aris s s " (Carrier submission at 13) .
Carrier argues that it satisfied its contractual burden to prove
Claimant guilty as charged.
Carrier asks the Board to deny the
claim in its entirety.
PLB No. 6199
Case No. 23, Claim of C.A. Morgan
Page No. 6
The Organization argues that Claimant was dismissed without
sufficient cause following the September 7, 2000 investigation,
because carrier failed to "present any solid evidence that Claimant
was intentionally violating any rules or instructions of the
Carrier" (Organization submission at 4). On Carrier's original
charge that Claimant misused his CLC card (not substantively at
issue in this case), the Organization maintains that he was given
permission to retain lodging at his home terminal by Carrier
officers, and further that "one would have to logically assume that
the Claimant would be registered in two facilities at the same
time" while he was at the away from home terminal (Organization
submission at 3). Before the Board on this point, the Organization
asserts that "literally moving out of the Nashville facility at
each call for duty would be impossible".
The Organization argues
that Claimant was simply acting in a manner consistent with his
understanding of CLC privileges.
The Organization rejects Carrier's assertion that Claimant
stayed in Paris on the night of June 25, 2000, arguing that Carrier
can only support this accusation by a handwritten registration form
which anyone could have signed. Furthermore, the Organization
points out that Claimant denied these allegations more than once,
and contends that Claimant's position is supported by Mr.
Cantrell's testimony, which is consistent with the claim of
innocence on this issue.
The Organization asks the Board to sustain the claim in its
entirety.
DISCUSSION AND ANALYSIS: Upon the whole of the record, the Board is
persuaded that Carrier submitted substantial evidence of Claimant's
guilt of the charge.
Operating Rule 501 expressly prohibits
employees from "being dishonest, willfully neglecting .dut y , making
false statements, and concealing facts concerning matters under
investigation". There is substantial credible evidence to support
Carrier's finding of guilt on each one of these points.
First, the evidence establishes that Claimant rendered himself
unavailable for service when he marked off sick the morning of June
25, 2000, but was well enough to "party" all night according to his
own testimony and that of Mr. Cantrell. The Board finds this
conduct consistent with "willful neglect of duty" as intended by
Rule 501.
Secondly, the Board is convinced that Claimant
inappropriately secured lodging in Paris on June 25, 2000 at
Carrier's expense while off duty and unavailable for call. Here,
the evidence included a sworn statement by the hotel clerk who
PLB No. 6199
Case No. 23, Claim of C.A. Morgan
Page No. 7
checked him in, a hotel register containing his signature (but o o
appropriate required train information), and an eyewitness who
observed Claimant in the hotel on the morning of June 26, 2000.
Finally, the Board is persuaded that Claimant repeatedly lied about
his whereabouts on June 25, 2000.
The Board finds that Claimant
resorted to making false statements during both evidentiary
hearings in order to escape the
disciplinary consequences for
misusing his corporate lodging card, and, that he coerced a coworker into lying.
In conclusion, the Board notes Claimant's attempt to extricate
himself by admitting in the hearing that he had, after all, been in
Paris at the Best Western Hotel on June 25, 2000, but only in the
afternoon; this directly conflicts with his own testimony at page
14 of the September 7, 2000 transcript, as follows:
Sanders:
"Okay. I think you stated previously that you
were not in Paris on the dates mentioned in
this investigation?H
Claimant: "That's correct. H
Carrier has the right to expect honesty and dependability from
its employees, and Rule 501 so requires.
Claimant's breach of
those requirements was sufficiently serious as
to
justify
dismissal. The Board finds that Carrier established the violation
and that the penalty was appropriate. The claim is denied.
AWARD: The Organization's claim is denied.
Dated this
7"'1
day of '7/I.tVl.~
r
2001.'
M. David Vaughn, Neutral Member
~~(lm~
Patty Madden, Carrier Member
Paul Sorrow, Employee Member