Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 11555
SECOND DIVISION Docket No. 11391
88-2-87-2-33
The Second Division consisted of the regular members and in
addition Referee Ronald L. Miller when award was rendered.
(International Brotherhood of Electrical Workers
PARTIES TO DISPUTE:
(Burlington Northern Railroad Company
STATEMENT OF CLAIM:
1. That in violation of the current Agreement, System Electrician S.
R. Wasson was unjustly suspended from the service of the Burlington Northern
Railroad following an investigation held November 14, 1985.
2. That the investigation held on November 14, 1985 was a fair and
impartial investigation.
3. That the notice of investigation provided Electrician Wasson and
his representative did not contain the required advance written notice of the
specific charges for which the investigation was being held and for which discipline was assessed.
4. That the Burlington Northern Railroad was procedurally defective
in its assessment of discipline.
5. That the Burlington Northern Railroad failed to meet the required
time limits in providing the Employees' representative copies of the Investigation Transcript and Notice of Discipline.
6. That the Burlington Northern Railroad failed to meet the requirements of the controlling Agreement in its denial of the Employees' initial
claim.
7. That accordingly, the Burlington Northern Railroad be directed to
compensate System Electrician S. R. Wasson for any and all wages lost as the
result of the subject suspension and they restore to him any seniority rights
or benefits to which he is entitled under agreement or law and which were lost
or adversely affected by this suspension. Claim also includes removal of all
record of the subject investigation and discipline from Electrician Wasson's
personal record.
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 employer within the meaning of the
Railway Labor Act as approved June 21, 1934.
Form 1 Award No. 11555
Page 2 Docket No. 11391
88-2-87-2-33
This Division of the Adjustment Board has jurisdiction over the
dispute involved herein.
Parties to said dispute waived right of appearance at hearing thereon.
The Claimant was assigned to work at 5t. Louis, Missouri, on and
after October 29, 1985. When he attempted to check into a motel on October
28, 1985, he was told his credit card was unacceptable. Claimant thereupon
drove a Carrier vehicle to Burlington, Iowa, in order to take care of his
financial affairs. He did not work his scheduled assignment on October 29,
1985. Subsequently, Claimant was issued a ten (10) days disciplinary suspension for personal use of a carrier vehicle without proper authority, and absence on October 29, 1985, from his assigned work place without proper authority.
Before dealing with the merits of this case, a number of procedural
issues must be decided. First, the notice charges was sufficiently specific
to enable Claimant and his representatives to prepare a defense. The record
shows that Claimant was fully aware of the basis for the investigative hearing. Second, a review of the entire record of this case shows that Claimant
was afforded a fair and impartial investigation by the hearing officer. There
is no evidence of record that the multiplicity of the hearing officer's roles
deprived Claimant of any due process rights. Third, although Claimant received the notice of discipline in a timely manner, there is no evidence of
record that his representative was similarly notified. This procedural error
is not sufficiently serious to warrant sustaining the claim, nor is such
action required by Rule 30 (i). There is no evidence that Claimant's appeal
was adversely affected by this procedural error. Fourth, there is no merit to
the contention that Claimant was suspended for eleven (11) rather than ten
(10) days. Claimant served a ten (10) days suspension; compensation for
November 14, 1985, is related but separate matter. In the absence of evidence
that compensation for November 14, 1985, was argued on property (the transcript of the investigative hearing is silent on this matter), this Board does
not have authority to decide the matter. Fifth and finally, the Carrier
denied the Claim in a timely and minimally acceptable manner. Therefore, this
case must be decided on its merits.
The Carrier has not established with substantial evidence that
Claimant was absent from work on October 29, 1985, without proper authority.
The Carrier did not effectively rebut the testimony of the Foreman that the
usual practice of that work group was to simply notify a foreman of a worker's
intent to be absent, and furthermore that the relaying of such notification
through a third party was not uncommon. Additionally, Claimant telephoned his
Foreman prior to the start of work on October 29, 1985, to confirm that the
Foreman had received his message. Therefore, this portion of the claim must
be sustained.
Form 1
Page 3
Award No. 11555
Docket No. 11391
88-2-87-2-33
However, with regard to the charge of Claimant using a Carrier
vehicle for personal business without proper authority, the Carrier has convincingly established Claimant's guilt. The record is clear, Claimant did not
have permission or authority to drive the vehicle to Burlington. Such permission or authority cannot be deduced from the assignment of the vehicle to
Claimant for work related activities.
The ten (10) days suspension shall be reduced to five (5) days.
A W A R D
Claim sustained in accordance with the Findings.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest:
Nancy J. - Executive Secretary
Dated at Chicago, Illinois, this 31st day of August 1988.