i/
Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No.
9405
SECOND DIVISION Docket No.
9329
2-BN-EW-183
The Second Division consisted of the regular members and in
addition Referee Edward L. Suntrup 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, the Burlington Northern Inc.,
arbitrarily and with clear discrimination unjustly suspended Shop
Electrician Helper V. L. Larson from its service for a period of ten
(10) days.
2. That further in violation of the controlling Agreement, Carrier failed
to afford Claimant Larson a fair and impartial investigation as required
by the Agreement.
3.
That accordingly, the Burlington Northern Inc., be ordered to compensate
Electrician Helper V. L, Larson eight
(8)
hours pay at the pro-rata
rate for each day she was withheld from service as the result of the
tea (10) day suspension and in addition remove from her personal record
all record of the suspension. Claim to begin July 10,
1980.
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.
Claimant, Ms. V. L. Larson, regularly employed by Carrier as shop electrician
helper, received notice on June 2,
1980
to attend an investigative hearing on
June 12,
1980.
She was charged with alleged failure to comply with instructions.
On July
8, 1980
Claimant was notified that she had been found guilty as charged
and was being suspended from service for ten (10) days. After appeals by the
Organization on property in a timely manner with all Carrier officers authorized to
receive such appeals, this case is now before the National Railroad Adjustment
Board.
Organization claims that the procedures used by Carrier were in contravention
of working Agreement Rule
35
(a)(g) because the same Carrier officer, Shop
Superintendent, M. L. Varns filled the multiple roles of conducting the investigation,
assessing discipline and denying first line of appeal is duly noted by the Board.
This Board has gone on record in past Awards, some of which are cited by the
Organization (Second Division
4536
and
7119
inter alia), to the effect that it
Form 1 Award No. 9405
Page 2 Docket No. 9329
2-BN-EW-'83
has sustained claims on procedural grounds when the same officer fulfills multiple
roles to the extent that due process is obviated. This is not, however, the
situation in the instant case. Appeal of the decision by Mr. Varns
M
was
directed by the Organization on property to both the Assistant Vice PresidentMechanical, Mr. R. E. Taylor and to the Assistant to the President, Mr. L. K.
Hall both of whom could have reversed and/or amended the initial assessment of
discipline.
Organization also raises the issue of Carrier discrimination against Claimant:
under Sec. 10 and Sec. 212 of the Federal Railroad Safety Act. With respect to
this it is clear that this Board, under the Railway labor Act, has no jurisdiction
to interpret federal law but that its appellate role is limited to the consideration
of claims that have been handled "in the usual manner" on property. The Claimant
shall not be prejudiced, however, nor shall her rights be disturbed by the Board's
lack of jurisdiction in this matter.
The narrower question, therefore, on
which the
Board is asked to rule is
whether Claimant did, in fact, "comply with instructions from (her) Superior in
regards to parking (her) car in a 'no parking' area on the northeast side of
(the diesel) shop on Thursday, May 29, 1980".
The transcript of the hearing before the Board shows that Mr. D. A. Andersen;,
Foreman of Locomotives, and Claimant's direct supervisor testified that.he
instructed Claimant not to park in the area in question, in accordance with a
Carrier directive of July of
1978.
Claimant admits that she did not comply with
Carrier Safety Rule
667,
Form 15001 which states: "Employees must comply with
instructions from proper authority". The Board will not, therefore, disturb
Carrier's finding of guilt in the instant case. The only issue which remains to
be considered is whether the sanction assessed the Claimant was reasonable. The
Board notes with interest certain special circumstances in this case: there was
no "no parking" sign in the area in question; a memo which informed the employee
not to park in this area had never been seen by Claimant, nor by three other
witnesses at the hearing; and none of the three witnesses for the Claimant, two
electricians and a machinist, had themselves ever been told not to park in the
area, and at least one of these witnesses did habitually park at the locale in
question on occasion. In addition, there is some reason to believe that Claimant
parked in this area because she was the only female to leave the work area at
a late hour and that she thought this parking area to be somewhat safer than
There is some discrepancy, although that remains immaterial to the narrower
procedural question at hand, concerning Mr. Varn's actual authority to issue
discipline decisions in the first place. Mr. Taylor, Asst. V.P.-Mechanical,
implies in his letter to Mr. Ben F. Tangeman, General Chairman, IBEW that Mr.
Varns does not have this authority (Employee Exhibit H), whereas Mr. Hall, Asst.
to the Vice President, states that he finds it "proper" that the investigating
officer "should render the initial decision" (Employee Exhibit K).
Form 1
Page
3
Award No.
9+05
Docket
No. 9329
2-BN-183
others. None of these reasons nullify the infraction Claimant committed but they
put in clearer context an appropriate application of the rule or progressive
discipline. In view of these facts,therefore, the Board finds that the ten (IO)
day actual suspension is unduly severe, and the Board rules that a ten (10) day
overhead suspension, followed by a six (6)-month probationary period, sufficiently
fulfills the requirements of the rule of progressive discipline in the instant case
since this is the Claimant's first known infraction. It also directs that she
be paid eight
(8)
hours straight time pay for each day she lost while being
withheld from service because of the actual suspension assessed on July 10, 150.
A W A R D
Claim sustained to the extent indicated in the Findings.
NATIONAL RAILROAD ADJUSTMENT
BOARD
By Order of Second Division
Attest: Acting Executive Secretary
National Railroad Adjustment Board
By
emarie Brasch - Administrative Assistant
Dated at Chicago, Illinois, this 2nd day of I~'~arch,
1983.