PUBLIC LAW BOARD NO. 4450 PARTIES TO THE DISPUTE: BROTHERHOOD OF LOCOMOTIVE ENGINEERS and - UNION PACIFIC RAILROAD COMPANY STATEMENT OF CLAIM: Request the dismissal of Engineer C. L. Boyter be expunged from his personal record and he be paid for all lost time with all seniority and vacation rights restored unimpaired. OPINION OF BOARD: Engineer C. L. Boyter was employed by Carrier for approximately seventeen (17) years. Following an injury on the job, he laid off frequently during the period November 1991 to March 1993, during which time he also pursued a FELA claim against Carrier. Based upon accumulat.ed evidence, including video taped surveillance reports of a private detective agency, Carrier dismissed Claimant for allegedly "laying off from work on numerous occasions under false pretenses; furnishing exaggerated and/or misleading information to Company representatives; and accepting advance claim settlement payments under false pretenses II On August 24, 1991 while working as Engineer in through freight train between Salt Lake City and Milford, Utah, Claimant allegedly "twisted" his back. Claimant informed h;i.s conductor
2 that he had fallen and hurt his back, and then notified the Crew Management System (ems) to report an on duty injury. Carrier physicians reported that Claimant complained of experiencing "pain on the right side with radiation to the medial aspect of the foot. 1I Magnetic Resonance Imaging (MRI) testing by Dr. David Beck resulted in a report that examination of Claimant revealed a "marked list to the left. 1I Following the MRI examination, Dr. Beck referred Claimant to neurosurgeon who recommended anti-inflanunatory drugs and Ilintensive" physical therapy in lieu of surgery. Eventually, Claimant entered a "back hardening" program at the Intermountain Spine Institute at Cottonwood Hospital, under the direction of Dr. Sawchuck. Following several weeks of swimming, stair climbing and weight training, Claimant "graduated" from the program and was released to return to service in late November 1991. When Casualty Management Representative N. Olsen met with Mr. Boyter on November 25, 1991, Claimant reported "good results", but expressed concern that when he returned to work, he might have "some occasions ll where his back problem would "flare up II and he might need to layoff. Mr. Olsen spoke to Crew Management on Claimant's behalf, and assured Mr. Boyter that if he experienced a "flare up" he would be afforded time off and would be compensated accordingly. Following his return to work, in November 1991, Mr. Boyter laid off relatively frequently, citing "continuing pain and physical limitations."
3 In May, 1992, Claimant approached Mr. Olsen to discuss a FELA settlement with regard to his back injury. According to Mr. Olsen, Claimant made an "excessively high ll settlement demand which was rrexorbitant ll when compared to other settlement requests from employees suffering similar injuries. Claimant explained that he anticipated "losing time from work for the rest Qf my life", and that he was placing Tla lot of value on future earnings" for that reason. Although Claimant maintained that his condition was -"improving II, he continued to lay off from work regularly over the next few months. According to Mr. Olsen, Ilrumors rr began to surface with regard to Claimant's continued absenteeism. Mr. Olsen became more suspicious when Claimant's physicians reported that they "could not correlate Mr. Boyter's subjective complaints with the objective findings. II Between the dates of August 23 and December 24, 1992, Mr. Olse~ arranged covert surveillance by Lowther & Associates, a private security firm in Salt Lake City. The surveillance was conducted on those days when Claimant laid off for llmedical reasons. II The investigators reported little suspicious activity until December 24, 1992, when an investigator observed Claimant performing physically strenuous Western Swing dancing, including lifting his female partner clear of the floor, at a tavern called "Rocky's Baril. When Claimant's layoff record improved in January 1993,
4 however, Carrier discontinued the surveillance without taking action at that tdne against Claimant. Claims Representative Olsen continued to investigate reports of Claimant/s outside activities "of a physically exertive nature tl on days when he marked off citing "back problems. 11 Specifically, he taped structured interviews of Claimant's former girlfriend and members of her family. According to those interviews, on days when he allegedly was unable to work Claimant frequently went. Western Swing dancing at "Rocky's Bar" and occasionally played basketball. Those individuals also were involved in a horse ranching operation with Claimant. They reported that he routinely "bucked" sixty pound bales of hay, shoveled out stalls, rode horses, and moved heavy furniture. In February 1993 1 Claimant renewed his demand for a FELA settlement. The issue remained unresolved, and a few days ~aterl Claimant secured a medical leave of absence beginning February 18, 1993 for "reasons of physical impaidment.~ Between February 25 and March 25 1993, Carrier ordered resumption of video surveillance of the Claimant on days when he marked off due to "back problems." The private investigators reported Claimant was observed to be "a strong'young man without any physical limitations whatsoever, climbing the stairs to his apartment two steps at a time, walking without any restrictions, and 'burning up the dance floor' at Rocky'S Bar." During this time period, Claimant
5 continued to draw disability payments through the Carrier's Management Office on a regular basis, in addition to "an advance against FELA money. It On April 19, 1993, Mr. Olsen submitted the results of his L_vestigation to Superintendent Farr. On April 20, 1993 Claimant was issued Notice of Investigation into the following: 1. Laid off from work on numerous occasions under false pretenses, citing inability to perform service due to your reported physical injuries while engaging in various outside physical ac.tivities of an exertive nature.. 2. Furnished exagerated and/or misleading information to Company Representatives and or medical practioners with regard to your physical condition, physical activities, and your ability to perform various physical activities. 3. Accepted advance claim settlement payments under false pretense of your inability tpo perform normal duties. On April 22, 1993, Claimant's representative requested and Carrier granted a postponement of the investigation until June 1, 1993. Subsequently, on May 28, 1993, Claimant's representative requested and Carrier again granted a frther postponement until June 22, 1993. On May 28, 1993, Carrier issued an amended notice of hearing setting forth the same charges but adding citations of various Carrier rules. After reviewing the evidence adduced at the hearing, Superintendent Farr notified Claimant that he was found guilty of all charges and dismissed from service. Despite vehement protest by Claimant's representative, we
6 find no fatal procedural defect in the notices of investigation. However, we are persuaded that the Organization's protests to the introduction into the investigative record of unsworn rrinterviews ll of Claimant's ex-girlfriend and her family by Mr. Olsen are well founded. The interviewees demonstrated a clear bias agianst Claimant but the Organization had no opportunity to explore that subject or to cross-examine any other aspects of their "t.estimonyrr because they were not called as Carrier witnesses at the investigation. Rather, Carrier simply introduced their transcribed interviews onto the record through Mr. Olsen. Not only were these statements unsworn, but they - consisted almost entirely of answers to leading questions by the Carrier Claims Representative. We conclude those interviews are not valid evidence, they should not have been introduced in the hearing record and we have not considered them in arriving at our decision in this case. In most labor-management arbitrations evidence is freely admitted which would be excluded by a judge in a jury trial as technical hearsay not falling within one of the recognized exceptions to the prohibition on hearsay evidence. Recognizing that tlout-af-court" statements usually are less reliable than live present testimony by a witness subject to oath, cross examination and direct observation, labor-management arbitrators nonetheless usually will accept hearsay evidence, while reserving a skeptical judgement concerning just how much weight to give to
7 such evidence. One prominent arbitrator summarized the reasoning behind this approach to hearsay evidence in labor~management arbitration, as follows: No doubt the reason that the parties and the Arbitrator are not limited by the formal rules of evidence in an arbitration is the belief that rigid conformity to strict rules of evidence would tend to make the proceeding too technical and unreasonably restrict the parties from offering proofs that enable the Arbitrator to more fully grasp the labor relations situation, properly evaluate the problem, and render a just award. When witnesses are unavailable for good cause, arbi~rators often will accept a sworn affidavit in lieu of dirct testimony, recognizing the hearsay nature of the document but taking it nonetheless IIfor what it is worth. 1I Even in the relatively relaxed arbitral forum, however, some hearsay documents are so blatantly unfair and inherently unreliable that they must be excluded. In our considered judgement~ the transcribed question and answer II interviews" in this case faj.l intq that category. Even when the "interviews" are not considered, however, - - Board finds that Carrier has adduced more than sufficient record evidence to support its findings that Claimant was culpable as charged in Charges 1 and 3. The testimony, video tapes and field notes Of female private investigators, who actually danced several times with Claimant at "Rocky's Bar, II while their partner video taped Claimant's strenuous exertions on the dance floor, are more than enough to make the case for Carrier. Leaving aside Charge 2, for which the evidence is less than conclusive, the
- - 8 Claimant's proven guilt of charges 1 and 3 is suffucient to support Carrier's discharge decision. AWARD Claim denied. ~~~,-- Dana Edward Eischen, Cha~rman Dated at Ithaca, New York on July 31, 1994 Union Member Dated at ~'C'.Al~ti ~/d on rg 1/. 2' c.( My.