The First Division consisted of the regular members and in addition Referee Dana E. Eischen when award was rendered.

Transcription

1 Form"! NATIONAL RAILROAD ADJUSTMENT BOARD FIRST DIVISION The First Division consisted of the regular members and in addition Referee Dana E. Eischen when award was rendered. (Paul C. Giambrone PARTIES TO DISPUTE: ( (Metro-North Railroad STATEMENT OF CLAIM: FINDINGS: "Claim is made on behalf of Paul C. Giambrone for reinstatement to his former position with discipline expunged from his record, seniority and agreement rights unimpaired, and full compensation for all lost wages, health and welfare benefits, sick days, vacation days, personal leave days, and holidays had he not been dismissed from the carrier's service on March 12, 1992 under Discipline Notice No in connection with the following charge: 'Stealing; in that you deliberately failed to cancel valid commutation tickets collected while assigned as a Metro North train service employee during various months in 1987 with a value in excess of $1, by providing such tickets to confederate Susan A. Nagle for her personal use and\or for her cash redemption.'" The First Division of the Adjustment Board, upon the whole record and all the evidence, finds that:.the carrier or carriers and the employee or employees involved in this dispute are respectively carrier and employee within the meaning ofthe Railway Labor Act, as approved June 21, This Division oftheadjustment Board has jurisdiction over the dispute involved herein.

2 Page 2 Parties to said dispute were given due notice of hearing thereon. Paul C. Giambrone (Claimant) was employed as a Trainman in 1979 with the Consolidated Rail Corporation. Claimant transferred to the Metro-North Railroad when it assumed operations on January 1, On January 27, 1992, Claimant was directed to attend an Investigation in connection with: "Stealing: in that you deliberately failed to cancel valid commutation tickets collected while assigned as a Metro North train service employee during various months in 1987 with a value in excess of $ by providing such tickets to confederate Susan A. Nagle for her personal use and/or for her cash redemption." The Investigation was originally scheduled. for February 3, 1992, however, it was postponed, and ultimately commenced and concluded on March 6, At the Investigation, the following facts were developed: On September 16, 1991, Redemption Specialist, Donna Maltese, of the Metro North Passenger Revenue Accounting Department, received a package of some 133 unused commuter tickets from 1987, together with a handwritten letter, signed "Susan Nagle", requesting a refund, in the amount of $ Dueto the large volume of tickets and the extended length of time since the date of purchase, Ms. Maltese brought the letter to the attention of her Supervisor, Deputy Controller-Passenger Revenue Accounting, William Conklin. In turn, Mr. Conklin directed Assistant Manager-Conductor Accounts, Robert Houlihan, to conduct an Investigation to determine what train the tickets would have been presented on. On October 10, 1991, Houlihan issued a report in which he concluded that: "There was a consistency in who the conductor was on the train, P. C. Giambrone." Sometime between the reporting date and December 10, 1991, Mr. Conklin turned the matter over to the Metro-North Police Department. On the evening of December 10, 1991, Metro-North Detectives M. Magner and W. Barreto spoke to Ms. Nagle at her residence. At first, Ms. Nagle reported that she

3 Page 3 had "purchased" the tickets, but because she hadn't used many of them, she attempted to redeem their monetary value. However, when the Detectives reminded Ms. Nagle that the majority of the 133 tickets for which she sought a refund were dated May of 1987, Ms. Nagle admitted that she had received the tickets from: "A Metro-North Conductor, Paul Giambrone." Ms. Nagle's went on to relate the following: In 1981, while riding the then Conrail Train from Scarsdale to Chappaqua, she met Conductor Giambrone. After a few months, the two began to date. Sometime in 1984, Giambrone began giving Ms. Nagle Metro-North Commutertickets, so that she could ride the train for free. Giambroneallegedly told Nagle that he collected the tickets on the train, but "never punched them, so they are still good." Giambrone also allegedly told Nagle that she could cash the tickets in at a Metro-North ticket window for a refund. Ms. Nagle admitted cashing in tickets at Scarsdale, White Plains, Chappaqua, Fleetwood and Bronxville on approximately 50 occasions, many times accompanied by Claimant. Ms. Nagle further stated that from 1984 until 1988, when their da,ting relationship ceased, Claimant gave her Metro-North tickets to "cash and use" on a regular basis. In July 1991, when Ms. Nagle moved to her present address, she discovered two plastic bags of Metro-North daily commutation tickets which she had "forgotten about". Ms. Nagle admitted that she was "out of work and having financial problems", therefore, she decided to cash in the tickets, the first 133 of which prompted said Investigation. In total, Ms. Nagle received approximately 400 tickets from Claimant. Ms. Nagle agreed to cooperate with the Metro-North Police, and as a result, a telephone conversation between Ms. Nagle and Claimant was tape recorded by the police. On the certified transcription of that tape, Claimant admits giving the tickets to Ms. Nagle and tells her, no fewer than six times, to burn them and to deny that she received them from him. The following representative passages reveal the depth of Claimant's culpability: "PG: Well listen, don't you ever mention my name because they're comin' down on those tickets like you wouldn't believe I mean they can't link them

4 Page ~-2048 to me anyway. But don't you ever mention my name!...now those were given to you so it would save you money, and you know that. So don't you ever try to hurt me with them. Okay? Don't you ever mention my name to these police...because let me tell you somethin' what's gonna happen. Not only will you get in trouble, but I would lose my job. (pause) Okay? And you don't want that to happen.. You bought 'em! That's all. You bought 'em and then you lost your job and you're not usin' 'em no more, that's all. BURN all those tickets! First of all they're not good anyway. And you don't want to get caught with anything you don't want to get caught with, do you?..now listen to me. You burn those tickets And no matter what these guys tell to you, they-you don't-you don't even mention my name. 'cause, uh, they'll come right to me... And I'll, 1'11-1 don't know-i mean I'll deny everything. I don't know where those tickets came from. But, uh, as far as I know, 'cause if they hook me up with you (pause), you're dead and I'm dead... Get rid of them, I don't care what you- and don't put throw 'em in the garbage. They'll look in your garbage.. Just burn 'em and do not mention my name." At the Investigation, Claimant admitted that he and Ms. Nagle had, indeed, dated for a period of time. With regard to the tickets at issue, Claimant stated that: "I bought her tickets on and off when she was broke and didn't have any money when we were going together. I even paid her rent that one time when she was broke, but I never gave her any tickets off my trains." When asked if he could offer "any plausible explanation" to prove that he was not involved with Ms. Nagle and her attempt to cash in the tickets, Claimant stated: "Yes. It seems to me that if I was involved, which I wasn't, in cashing in tickets with Ms. Nagle, she wouldn't have approximately 400 tickets in her possession without me knowing about it. I think the taped conversation clearly proves that I had no knowledge that she had any tickets in her possession. To me, that shows I'm not involved in any type of ticket scam. Also, I stopped going out with her in She didn't get fired from her job until, I think.

5 Page 5 February of She didn't drive. All the tickets were outdated. What was she using to ride the trains through 1991? That shows to me that it was another conductor, not me who was giving her the tickets." With regard to the incriminating telephone conversation, Claimant maintained that he was "asleep on the couch when she (Nagle) called", and "just confused as to what she was talking about." When questioned as to why he had advised Ms. Nagle to "burn them" (the tickets), Claimant stated that he was: "Responding to a person I cared about very much. She has a problem with tickets -- you know, I cared about her, and I was just giving her advice." When asked why he had instructed Ms. Nagle: "Don't you ever mention my name because they're coming down on these tickets like you wouldn't believe", Claimant contended that he was "thinking about what a hot item ticket cashing is on the railroad nowadays and if she has 300 tickets, and I gave them to her, I could be in a paper bag situation trying to punch my way out. I mean, they can't link it to me anyway, means they didn't come from me, and I'm more or less telling her in a nice way, rather then saying you better talk to whoever gave them to you. I didn't feel a need to defend myself any more than that." On March 12, 1992, Claimant was notified that he had been "immediately dismissed in all capacities", due to his violation of Rules D, E, Paragraph 1; and 900 of Metro-North's Rules of the Operating Department and Rule 2203A, Paragraph 1 of the Train Service Manual. The Organization appealed the discipline premised upon Carrier's alleged procedural violation of Rule 26-A, 26-C-l, 26-C-l(B), 26-C-2 and 26-D-4. Regarding the merits of the issue, the Organization asserted that: "The only evidence within the transcript that raises suspicion.that Conductor Giambrone was remotely involved with giving Ms. Nagle tickets is two Metro-North police officers saying she did it. That, along with Exhibit P, supposedly signed by Ms. Nagle, is the only evidence within the transcript. In view of the fact that Ms. Nagle was not present at the investigation; the fact that she had 400 tickets of Metro-North's, the fact that she indicated 8 times in the telephone conversation that she feared being locked up, the

6 Page 6 fact that the police came up with Conductor Giambrone's picture, the fact that it was proven that she lies, clearly shows that any statements she made could have been coerced or outright lies. In any case, a known liar's testimony is not worth anything. Mr. Houlihan's investigated work of 133 tickets is not evidence towards Conductor Giambrone's guilt. His testimony, that 20 or 30 tickets out of 133 for 20 different dates, and that she might have taken train 917, is absurd. There is no supportive evidence to indicate that the 400 tickets in Ms. Nagle's possession, presumably bought by other customers, in fact rode Mr. Giambrone's train in It is clear that the suspicions given to the Metro-North Detectives from Mr. Conklin's office, coupled with what they perceived the telephone conversation meant, led them to believe Conductor Giambrone was guilty, and they did no further investigativework. Mr. Giambrone's testimony as to his relation with Ms. Nagle, in regards to the time frame of their affair, clearly shows that he could not have given her those tickets. That testimony, coupled with his testimony of what he meant during the telephone conversation, shows his innocence." In its denial of the claim, Carrier contended that it had met each of the time limits set forth in the Agreement. Regarding specificity of charges, Carrier maintained that there was "more than enough" specificity in the Notice to apprise Claimant of the offenses with which he was charged." Carrier went on to note that it had not violated Rule 26 (C) (2) of the Agreement, in that an internal police investigation is not a "letter of complaint",and that Carrier had "extended a courtesy" by providing the transcript of the taped phone conversation between Claimant and Ms. Nagle, as there is no "discovery" provision in the Agreement. Finally, with regard to the merits of this dispute, Carrier stated that:

7 Page 7 "You admitted having a personal relationship with Ms. Susan Nagle, which she confirmed existed until She informed Metro-North Police Detective Magner that you provided her with uncancelled Metro-North commutation tickets which you collected on your regular assignment. Ms. Nagle agreed to cooperate with Metro-North Police, and consented to a recorded telephone conversation placed to you. The tape was played at the investigation for your representative at the investigation and a copy was annexed to the record. The recorded conversation contained incriminatory and culpable statements which confirmed the allegations and provided the requisite evidentiary proof required to find your guilt of the charge offense. In that conversation, you stated to Ms. Nagle that you gave her those tickets so she could save money, that she was not to mention your name to the Police, that you would deny everything and that she was to burn the remaining tickets, several hundred still in her possession. Your attempts to explain your taped statements at the investigation were clearly self-serving and spurious. the record provides substantial and credible proof that you deliberately failed to cancel valid commutation tickets collected (with a value in excess of $1,000.00) while assigned as a Metro-North train service employee and provided the tickets to confederate Susan Nagle for her personal use and/or cash redemption. This behavior equates to stealing, and violated all of the charged rules. This behavior breached the trust placed in you as an agent of Metro-North and is clearly inconsistent with your duties as a collector of Company revenue. Furthermore, a review of your past discipline record reveals another act of dishonesty and a revenue offense arising out of your unauthorized use of a Company telephone credit card and your failure to issue duplex receipts on separate occasions."

8 Page 8 At the outset, the Organization pointed to numerous Agreement Rules, which it asserted that Carrier had violated in the handling of this dispute. The Organization contended that those violations were enough to prove fatal to Carrier's case. A careful review ofthe record evidence does not support the Organization's assertions regarding any of these alleged procedural irregularities. Claimant was notified of any and all postponements, the Letter of Notice was clearly in compliance with the Agreement, and we do not find any showing that the Hearing Officer was biased in any way. Finally, the letter from Inspector Lynch, dated January 21, 1992, and received by R. Sinigiani on the same date concerning the theft, as outlined in the Notice of Investigation dated January 27, 1992, was within the time limits specified in Rule 26 (C) (1). Turning to the merits of this issue, it is established beyond reasonable challenge that Claimant did, indeed, supply Ms. Nagle with the tickets in dispute. Although Ms. Nagle occasionally faltered throughout the interview, it is clear that the tickets in her possession had to have come from a Carrier employed Conductor, and the review of a sample showed that nearly all came from Claimant. That fact, in conjunction with the personal relationship between Nagle and Claimant is clearly enough to raise questions about the veracity of the Claimant's testimony. The taped conversation between Claimant and Ms. Nagle overwhelmingly supports Carrier's contention that Claimant engaged in repeated acts of dishonesty and then attempted to cover up his culpability by urging his accomplice to destroy the evidence and lie about his involvement. In that connection, Claimant's explanations regarding his damning admissions on the telephone conversation are such a ridiculous burlesque of the truth that they strain credulity past the breaking point. Mr. Giambrone's proven culpability in this matter and his past record supports Carrier's contention that this is an employee who simply cannot be trusted to honestly perform the responsible duties of a Conductor. It was not incumbent upon Carrier to give Claimant "another chance" and even if this Board possessed leniency powers we find no reason to tamper with this discharge. Based on the foregoing, this claim is denied. Claim denied. AWARD

9 Page 9 ORDER This Board, after consideration of the dispute identified above, hereby orders that an award favorable to the Claimant(s) not be made. NATIONAL RAILROAD ADJUSTMENT BOARD By Order of First Division Dated at Chicago, Illinois, this 29th day of May 1997.