F orm 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No.
9016
SECOND DIVISION Docket No. 8713
2-BN-EW-182
The Second Division consisted of the regular members and in
addition Referee John J. Mikrut, Jr. when award was rendered.
( International Brotherhood of Electrical Workers
Parties to Dispute:
( Burlington Northern Railroad Company
Dispute: Claim of Employes:
1. That in violation of the current agreement, Burlington Northern Inc.,
arbitrarily withheld Crew Lineman John M. Ward from service pending
an investigation.
2. That in violation of the current agreement, Burlington Northern Inc.,
arbitrarily refused the valid request of the Employee Representative
for a postponement of subject investigation.
3. That in violation of the current agreement, Burlington Northern Inc.,
arbitrarily, capriciously and unjustl severed Crew Lineman John M.
Ward from it's service as of January
4,
1979.
+. That accordingly, Burlington Northern Inc., be ordered to return Crew
Lineman John M. Ward to it's service, compensate him for all time lost,
including overtime he would have worked had he remained a crew member,
together with restoration of, or compensation for, lost vacation time,
holidays, sick pay and/or hospital benefits and any other rights,
benefits or privileges to which he may be entitled under schedules,
rules, agreements or laws and that the entry of investigation and/or
censure be removed from his personal record. Starting day of the claim
is November
18, 1978,
for eight
(8)
hours compensation at pro-rata rate
and eight
(8)
hours for each working day thereafter that Claimant is
withheld from service.
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.
At approximately 11:30 P.M. on Thursday, November
8, 1978,
while on
assignment in Alliance, Nebraska, Claimant, a student lineman assigned to the
communication line gang headquartered at McCook, Nebraska, informed his foreman
that he was "... sick with a cold ... and ... was going home". The Foreman
Form I Award No.
9016
page
2
Docket No. 8713
2-BN-EW-'82
apparently granted this request, whereupon Claimant drove from Alliance to
McCook (a distance of approximately 250 miles), arriving in McCook at approximately
3:30 A.M. on the morning of November
9, 1978.
Claimant maintains that he "...
called on Monday to the Wire Chief and left word at number
244 ..."
and that he
later "... came to the office and had the lady ring Alliance". At no time,
however, did Claimant wire his foreman in McCook or D. Elliott, Supervisor of
Communication in Lincoln, Nebraska, because he (Claimant) allegedly "... didn't
know that was the way it went" (Supra), and further because he had always called
previously in similar situations.
According to Supervisor Elliott, he received a wire from Claimant's foreman
in McCook ".,.. stating the dates ... (Claimant) ... had missed from November 1
on and said he didn't know where he (Claimant) was. He (Claimant) had left
without saying anything to him".
Sometime in the middle of November (15th, 16th or 17th), Claimant contacted
Supervisor Elliott and requested that his paycheck be mailed to him at his home
in McCook. According to Mr. Elliott, he informed Claimant that because he had
absented himself from duty, Claimant could either resign or it would be necessary
to hold an investigation in the matter. Claimant allegedly informed Mr. Elliott
that he would not resign but instead wanted to proceed with the investigation.
Thereupon Claimant remained absent from his assignment and made no further
attempt to contact his supervisor,
By Carrier letter dated December 7, 1978, Claimant was directed to attend an
investigation on Monday, December 18, 1978, "... for the purpose of determining
your responsibility for allegedly failing to protect your assignment as a student
lineman ... on November 18th through the present date". Said hearing was
conducted and, as a result thereof, Claimant was adjudged guilty as charged and
he was dismissed from Carrier's service as of January 4, 1979.
Organization's basic contention in this dispute is that Claimant's absence
from work for the period of November
18, 1978,
to December
18, 1978,
was caused
by the fact that Supervisor Elliott had instructed him not to return to work but
instead either to resign or to submit to an investigation of the matter. Thus
Organization charges that rather than being absent, Claimant was improperly
withheld from service during this period of time.
In addition to the foregoing Organization further asserts that Claimant was
denied a fair and impartial investigation in this matter because: (1) Carrier
failed to hold an investigation within 10 days of the time Claimant was initially
withheld from Earvice; (2) Carrier failed to notify Claimant of the precise reason
for which he was being withheld from service;
(3)
Carrier Hearing Officer denied
Employee Representative's timely request for a postponement of the investigatory
hearing despite the fact that said request was for "good and sufficient cause"
as contemplated in Rule
30(1);
and (4) said Hearing Officer failed to attempt to
develop all of the pertinent facts in this case.
Form 1 Award No. °010
Page
3
Docket No.
8713
2 -BN-EW-' 82
Carrier's position in this dispute is that "... it complied fully with Rule
30
of the agreement and that the evidence adduced at the investigation to support
its position was substantial and ... conclusive".
In support of this contention, Carrier asserts that at no time did Supervisor
Elliott or any other Carrier representative ever instruct Claimant, either in
writing or verbally, that he was being withheld from service. Accordingly,
Carrier argues that Claimant's assertion to the contrary "defies logic" because:
(1) such an action on Carrier's part would not have been a reasonable approach
by which to solve the problem of Claimant's absence from his assignment;
(2)
an employe's decision or acquiescence to submit to an investigation is not a
prerequisite for proceeding with same if so determined by Carrier;
(3)
Carrier
would not have conveyed such a critical message -- the withholding of an employe
from service -- through a fellow employe, but instead would notify the employe
in writing, which was, in fact, Carrier's established practice; and (4) Carrier
would not hold an employe out of service and then call an investigation to
determine why that particular employe was not protecting his assignment.
In addition to its "defying logic", Carrier further contends that Claimant's
testimony regarding his being withheld from service is "vague", "confused",
and "weak", and, therefore, is not credible. Moreover, Carrier posits that
"... it is not (Board's) province to rule on questions of witness credibility
..." and that "... it is singularly within the province of the hearing officer
to determine which testimony to credit where inconsistent testimony is given at
the investigation" (Second Division Award
No.
6408).
Turning next to the various procedural considerations which were raised by
Organization, Carrier contends that insofar as Claimant was not withheld from
service by his Supervisor as Claimant alleges, then those cited portions of
Rule 30 have been satisfied. As to Organization's assertion that Carrier
improperly denied Organization representative's request for a hearing postponement,
Carrier maintains that said denial was proper because:(1) both Claimant and his
representative had more than the contractually prescribed five days in which to
arrange for necessary witnesses and to prepare their case; and
(2)
postponement is
not a matter of "right" but is circumscribed by Rule 30 paragraph (i) of the
parties' agreement which requires that the party requesting such a postponement
must give "reasonable notice" and must "show good and sufficient cause" for same,
and, Carrier maintains, that neither of these obligations were met by Organization
in the instant dispute.
As its final major area of argumentation, Carrier posits that Claimant's
previous attendance record was considered only in determining the degree of
penalty to be assessed, and not to determine Claimant's guilt for the particular
infraction as charged. Such an assessment, according to Carrier, was proper
since "Carrier is obligated to consider an employe's past record in assessing
discipline".
The Board has carefully read and studied the complete record which has been
presented in the instant case and can find no good reason, either procedurally or
merit-wise, which would warrant a recision of the penalty which has been imposed.
Form 1 Award No. 9016
Page
4
Docket No.
8713
2-BN-EW-'82
Since it is undisputed that Claimant was absent from work for the period of
November 18,
1978
through December
18, 1978,
there are only two (2) questions
which are at issue herein and which are of concern to this Board. These questions
are: (1) did Carrier violate Claimant's due process rights in the processing of
this matter as specified in Rule 30 of the parties' controlling Agreement; and
(2) was Claimant withheld from service or led to believe that he was being withheld
from service by his Supervisor, D. Elliott. Obviously, an affirmative finding
regarding the first of these two questions will negate any further determination
on the second since such a finding would be sufficient to sustain the general
contention that Claimant was discharged improperly.
Regarding the various procedural questions which have been alleged by
Organization, the Board is unpersuaded that there have been any such violations.
In reaching this conclusion the Board notes that not only are Organization's
arguments somewhat contradictory (Claimant's hearing was not held within ten
days from his allegedly being withheld from service, yet Carrier did not grant
Organization's request for a hearing postponement) but, in addition, Carrier's
consideration of Claimant's previous attendance record was limited only to the
question of the degree of discipline which was to be administered as a result
of this final incident; and, as will be developed later in greater detail,
Claimant's absence from service from November 18,
1978,
to December 18,
1978,
was caused by his own action and not as a result of any action taken by Carrier.
Insofar as the postponement of the hearing is concerned, suffice it to say that;;
(1) Carrier was well in compliance with the five day notification period which
is prescribed by Rule 30; (2) said language of Rule 30 (i) does specify that
".., an investigation may be postponed if mutually agreed to" by the parties
(emphasis added by Board); 3 Claimant and his Organization failed to "show
good and sufficient cause" as to why such a postponement was warranted; and
Organization's request for postponement when given at the very beginning of the
investigation hearing itself certainly does not comply with the "reasonable
ao
notice requirement" which is obviously contemplated in said paragraph.
Turning next to the second of the two critical questions which form the
focus of this analysis, the Board concludes that, despite Claimant's contention;;
to the contrary, Claimant was neither withheld from service by Supervisor Elliott
nor, given the evidence of record, was there any good reason for Claimant to make
such an erroneous assumptica. Claimant did not receive any formal, written
notice indicating that such action had been taken; the assertions that Supervisor
Elliott informally related such critical information to Claimant aver the
telephone or casually entrusted same to be delivered to Claimant by a fellow
employe by word of mouth, are entirely at odds with the parties' Rules and are
contrary to Carrier's standard operating procedures; and, even more interestingly,
Claimant's own version of this particular aspect of the case ("... Elliott was
instructing me not to report to work until I agreed to resign or appear at an
investigation") suggests to the Board that Claimant himself was aware that he had
not been withheld from service at that point and the matter had not yet been
foreclosed but rather was still pending and Claimant was fully expected to return
to his assignment (emphasis added by Board).
Given the foregoing, it is determined that Claimant was not improperly
withheld from service by Carrier as alleged, and that any such assumption which
may have been made by Claimant was erroneous and unwarranted, and, therefore,
was made at his own peril.
Form 1 Award No.
9016
Page
5
Docket No.
8713
2-BN-EW-'82
A W A R D
Claim denied.
NATIONAL RAII1t0AD ADJUSTMENT BOARD
By Order of Second Division
Attest: Acting Executive Secretary
National Railroad Adjustment Board
By-~wG
R rie Brasch - Administrative Assistant
Dated at Chicago, Illinois, this 14th day of April, 1982.