Form 1 NATIONAh RAILROAD ADJUSTMENT BOARD Award No,
8062
SECOND DIVISION Docket No.
804+
2-c8Nw-CM-'79
The Second Division consisted of the regular members and in
addition Referee Rodney E. Dennis when award was rendered.
( Systexr.. Federation No.
76,
Railway Employes'
( Department, A. F, of L. - C, I. 0.
Parties to Dispute: ( (Carmen)
( Chicago and North Western Transportation Company
Dispute: Claim of Employes:
1. Carmen R. F. Gilson, T. Seller, and T. D. Fry, were unjustly
disciplined when letter concerning injuries incurred by these
employes were made part of their personal files.
2, That the Chicago ana. North Western Transportation Company be
ordered to remove these letters frown the personal files of Carmen
R. F. Gilson, T. Seiler., and T. D. Fry, as per the requirements
of Rule
35.
Findings:
The Second Division of the Adjustment Board, upon the whole record and
all the evidence, finds that:
The carrier or carriers and the employe or employes involved in this
dispute are respectively carrier and employe within the meaning of the
Railway Labor Act as approved June 21,
1934.
This Division of the Adjustment Board has jurisdiction over the dispute
involved herein.
Parties to said dispute waived right of appearance at hearing thereon.
This dispute carves to us as a result of Carrier supervision writing
letters to three Carmen admonJ _shing them for what Carrier considered to be
a poor safety record. The Organization contends that the placement of
letters in the Employees' personnel files constitutes discipline; as such,
an investigation, as required by Rule
35,
should have been held before hand.
In view of this failure to hold the investigation, the Organization requests
that the letters be expunged from the Claimants' files.
Very simply, this dispute turns on whether the letters were disciplinary
in nature or served merely as warnings. If the latter was the case, they
would have been letters written by a Carrier Supervisor in the normal course
of business, with the intent of bringing to the Claimants' attention what
Carrier considered to be a poor safety record.
Form 1 Award No. 8062
Page 2 Docket No.
804+
2-C&NW-CM-'79
In dealing with this issue in other cases, this Board has consistently
maintained the position that letters of warning are not disciplinary in
nature, and that their insertion in an Employee's file is not in violation
of the investigation requirements of most agreements. We have maintained
that properly used, letters of warning are an important and necessary
device that can change an Employee's behavior and put him back on the track
without the stigma of being disciplined and having this become a part of
his per3onnel file and his work record,
On the other hand, it need not be pointed out at this late date that
this Board has decided a multitude of cases against Carriers who have
disciplined Employees without the benefit of a hearing when it is required
by agreement or who have not conducted a hearing in a fair and impartial
manner. We have consistently upheld the contract right of Employees to have
the record of any false or disproven charges removed from their files. On
the record before us, we see no element of discipline in the letters to
the Claimants, nor do we see any
indication of
a threat of discipline. We
view the letters as informative in nature, serving as a warning that the
Claimants' safety records were not good and that they should give special
attention to this fact and work to improve them.
Carrier in this case has clearly enunciated in its written policies
and in its submission for this proceeding that it did not consider the
challenged letters to be letters of discipline, but rather thought of them
as letters of warning. We will hold Carrier to its commitment in arty
future cases we may decide involving this issue. We fully support Carrier's
position that warning letters are not disciplinary and should not be viewed
as such. A problem arises, however, in the way warning letters may be
worded. Care must be taken not to indicate that the Employee is guilty of
misconduct that would practica.Lly assure that he would be considered a
second offender if brought up on charges fox a similar offense in the future.
We have decided in a recent case on this issue (Award No.
7588,
Second Division)
that letters containing accusations of guilt for a specific act should be
considered disciplinary in nature and subject to investigation and a full
and impartial hearing before being placed in an Employee's file.
We see no such accusations contained in the letters placed in the
Claimants' files in this case. As to the organization's argument that an
Employee's total record will be used in assessing the severity of a penalty
in a future disciplinary action, this Board has commented on this point on
a number of occasions. We do ;got, nor will we in the future, allow the
past record of an employee to have an impact on the decision about his
guilt or innocence in a new case. We do, however, recognize that the
severity of a penalty may, in ;some instances, be based on the Employee's
past record. If Claimants in -this case are ever brought up on charges for
negligence in a safety issue, -there is no question that it is legitimate
for Carrier,to submit their record of accidents. The record in such
situations speaks for itself. Whether this record can be attributed to
carelessness or negligence would be arguable and subject to proof, as would
arty other accusations made against an Employee.
Form 1 Award No.
8062
Page
3
Docket No.
804+
2-cs:Nw-CM-'
79
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest: Executive Secretary
National Railroad Adjustment Board
o-~
By
os arie Brasch - Administrative Assistant
Dated a Chicago, Illinois, this 29th day of August,
lg7g.