Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD ,Award No. 9388
SECOND DIVISION Docket No. 9449
2-BN-EW-183
The Second Division consisted of the regular members and in
addition Referee Robert W. McAllister 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, Electrician J. H. Nyberg
was unjustly dismissed from service of the Burlington Northern Inc.,
following investigation held on date of December 30, 1980.
2. That accordingly, the Carrier be ordered to make the aforementioned
J. H. Nyberg whole by restoring him to Burlington Northern Inc.'s
service with seniority rights unimpaired, plus compensation for
and/or restoration of any lost vacation time, holiday pay, sick pay
or hospitalizatiaz benefits, railroad retirement benefits and any
other rights, privileges or benefits he may be entitled to under
schedules, rules, agreements or laws and that all record of this
investigation be removed from his personal record. In addition, the
Burlington Northern Inc., be ordered to compensate him in the amount
of eight (8) hours at the pro-rata rate for each work day lost as the
result of the unjust dismissal.
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 aver the dispute
involved herein.
Parties to said dispute were given due notice of hearing thereon.
The Claimant has been employed as an electrician at the Carrier's Superior,
Wisconsin, facility since February 1, 1974. By letter he was informed of his
dismissal from service effective January 15, 1981, for violation of the Carrier's
Safety Rules 667 and 668 in that he was employed as a fireman on the LST&T
Railroad without permission and for failure to provide evidence he had resigned
his employment with the LST8dr Railroad.
It is essential for clarity to outline the prior circumstances which have
been raised by the Organization. This Claimant had, at the time of his dismissal
in January of 1981, been recently reinstated to service by the Award of Public:
Law Board
2576,
Cases 3 and
4.
Those claims involved a suspension and dismissal
effective September 11, 1978, for absence from duty without proper authority. The
Form 1 Award No.
9388
Page 2 Docket No.
94+9
2-BN-EW-183
parties, in this case are identical to those in the Award of Public Law Board
2576_
and Claimant's employment as a fireman on the ZST&T was also an issue.
Herein, the Organization claims the Carrier unjustly terminated Claimant.
In support of this position, the Organization views this case as identical to
the Award in Public Law Board 2576. The Organization asserts that in that matter
the favorable decision on behalf of the Claimant was based on three factors. (1)
The Board found there was no denial by the Carrier that the ISM was a subsidiary
of it. (2) There was no Carrier denial that, in fact, Claimant was allowed to
continue to work at his position of fireman with the IST&T while concurrently
employed by the Carrier as an electrician.
(3)
Carrier provided no explanation
for refusal of Claimant's request for excused absence. This Board is asked to
conclude that we are bound to follow that Award and the findings therein.
Additionally, the Organization argues the Carrier's instructions to resign his
employment was improper and a violation of Rule 30. In support of this contention,
the Organization charges the Carrier with knowledge and implicit condonation of
employees holding dual employment.
At the outset, this Board does not find this case and the Award of Public Law
Board 2576 as being identical. The underlying issue of dual employment is central
to both the former Award and this case. However, the facts upon which the Carrier
charged Claimant in the respective cases are separate and distinct. The function
of this Board is well defined. Our scope of review is limited to the testimony
and evidence developed at the investigation. In addition to that record, the
Organization would have us superimpose, as factual, certain statements made by
the referee in explanation of the Board's decision. In response, this Board
underscores the distinction between the statutory, final and binding nature of
Board awards and the explanatory text contained therein. Often referred to as
dicta, we cannot bind the parties to such statements as uncontroverted fact.
To do so denies the possibility of error and would substantially limit the purpose
of an investigation, which is to develop all material evidence to be used in
assessing the appropriateness of the charges. Facts and circumstances are not
frozen in time. They continually develop, and due process requires this Board
to reject the Organization's position with respect-to certain findings in the Award
of Public Law Board 2576.
Carrier's Safety Rule 668 requires an employee to receive written permission
to engage in another business or occupation. The Carrier's explanation of this
request to the Claimant indicated his employment with IST8T did at times conflict
with his employment as an electrician with the Carrier. The record supports
that such circumstances have arisen. When asked the question how he chooses in
the event both the Carrier and IST&C require his services, the Claimant responded
there never was a question. "I chose the IST&T."
Accordingly, we find the Carrier acted properly in denying Claimant's request
for permission to engage in another occupation, and the instructions to resign his
employment with ISM reasonable. The Claimant admits he has not complied.
Form 1
Page 3
Award No. 9388
Docket No. 9449
2-BN-EW-183
Despite the importance of attempting to establish the Carrier acted in a
disparate and/or discriminatory manner in dismissing Claimant, the record is
absolutely void of any evidence importing knowledge to the Carrier or its
representatives that the Claimant was employed as a fireman on the LST&'r prior
to July of 1978. Nor does this Board find any evidence to support the Union's
contention the LST&T is a subsidiary of the Carrier and, as such, the Carrier
cannot now disclaim privity to essential personnel records which impacts the
issue of Carrier's knowledge of Claimant's employment with the LST&T. Nevertheless,
the Organization contends that once raised, it is the Carrier's burden to introduce
evidence pertinent to the issue of knowledge and ownership. This is an improper
conclusion. It is the burden of the party making such assertions to come forth
and support the allegations with testimony and/or evidence. This was not done,
and this Board is powerless to rectify the erroneous belief that in advancing
a defense without recourse to pertinent facts, the burden shifted to the Carrier.
A W A R D
Claim denied.
Attests Acting Executive Secretary
National Railroad-Adjustment Board
NATIONAL RAIIROAD ADJUSTMENT BOARD
By Order of Second Division
r
By
o emarie Brasch - Administrative Assistant
DD aJZo. Illinois, this 2nd day of February
ated t Chicago, Illinois, this 2nd day of February, 1983.