Foam 1 NATIONAL RAILROAD ADJUSTMM BOARD Award No. 8077
SECOND DIVISION Docket No. 7989
2-BNI-EW-'79
The Second Division consisted of the regular members and 3n
addition Referee George S. Roukis when award was rendered,
( System Federation No. 7, Railway Employes'
( Department, A. F. of Z. - C. I. 0.
Parties to Dispute: ( (Electrical WoxkPrs
(
( Burlington Northern Inc.
Dispute: Claim of Employes:
1. That in violation of the current agreement, the Burlington
Northern Inc.., arbitrarily disciplined Slap Electrician R.
Minefee by entering e. Mark of Censure on his personal record.
2. That accordingly, the Burlington Northern Inc., be ordered to
remove the Mark of Censure.
Clam
to start on October 13, 1977.
Findings:
The Second Division of the Adjustment Board, upon the whole record and
all the evidence, finds that;
The carrier ox 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 Tune 21, 193+.
This Division of the Adjustment Board has jurisdiction over the dispute
involved herein.
Parties to said dispute waived right of appearance at hearing thereon.
An investigative hearing was held on September 20, 1977 to determine
claimant's responsibility in connection with his alleged failure to
disconnect traction motor leads on engine 300+ on August 20, 1977.
He was adjudged guilty of violating Rule 667 of the Burlington Northern
Safety Rules and an entry of censure was made on his personal record,.
effective October
l3,
1977.
This determination is now before us pursuant to the applicable provisions
of the pettiest collective Agreement and the Railway Tabor Act as amended.
In reviewing this case, it is necessary at the outset to dispose of
the procedural objections raised by claimant regarding the hearing officer's
multiple roles. We recognize of course, the Board's diverse rulings on
this issue and the prompt resort of either party to cite them as precedent.
But in the instant case, we find neither prejudgement nor partisan testimony
that would vitiate the integrity of the administrative proceeding.
Form 1 Award No.
8077
Page 2 Docket No.
'1989
2-BNI-EW-179
Claimant was provided a fair and reasonable hearing that comported
with the essentials of due process.
Conversely, we do not find that claimant -vTas insubordinate, when carefully
assessing his precise behavior within the total context of his assigned
task.
Certainly he was under a pressing obligation to carry out expeditiously
the foreman's directive and abide by the employ^nent chain of command. But
the record clearly shozrs that he complied with this instruction between
3;20 ~pn and 3:115 In. Beyond this times there is corflict:inZ, albeit not
exactly hostile, testimony.
The foreman stated that at
3: 45
P.m. clairant was cloanino his tool--,
He testified that despite his telling claimant flat he ha~J at least ten
(10) minutes more to finish the job, claimant had not perfordied any additional
work by
3:55
P.m.
The Organization's wetness testified that claimant worked at removing
the traction motor leads until the normal quitting time, thus working through
his usual five
(5)
or ten (10) minutes that is allowed for putting tools
array. Claimant testified that he thought it was actually 4:00 p.m. when he
stopped working.
There were no direct or preemptory challenges to these statements.
In disciplinary proceedings, it is axiomatic for judicial bodies to
observe the substantial evidence rule. It is a fundamental due process
requirement.
The record does not provide that quantum measure of evidence that would
satisfy this standard. Accordingly, we are compelled to sustain the claim.
A W A R D
Claim sustained.
NATIONAL RAILROAD ADJIJST11,4EuT BOARD
By Order of Second Division
Attest: Executive Secretary
National Railroad Adjustment Board
. ~__-.-_
By . ~- Q rtt~-~ t_..._
`_---~Rosemarie Brasch - Administrative Assistant
Dated a~ Chicago, Illinois, this 5th day of September,
1979.