Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 11773
SECOND DIVISION Docket No. 11583
88-2-88-2-90
The Second Division consisted of the regular members and in
addition Referee Joseph S. Cannavo 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, Communication
Electronic Technician Donald LaFavor was unjustly withheld and suspended from
service of the Burlington Northern Railroad, both prior to and following an
unfair investigation beginning February 24, 1987 and continuing and concluding
on June 2, 1987.
2. That the Burlington Northern Railroad failed to provide the
required advance written notice of the specific and precise charges for which
the subject investigation was held and for which Mr. LaFavor was assessed
discipline and that it arbitrarily expanded their charges within the hearing
without the required advance notice.
3. That the Burlington Northern Railroad violated the Agreement when
it failed to provide the Employees with any, let alone reasonable, notice of
its intent to postpone the subject investigation from March 25, 1987 to June
2, 1987.
4. That the Burlington Northern Railroad violated its own Safety and
General Rules when it failed to provide Mr. LaFavor available training in high
voltage Video Equipment, while at the same time requiring him to work on that
equipment knowing that his training, experience and primary duties were in low
voltage Radio Equipment.
5. That the Burlington Northern Railroad abused its managerial
discretion when it unjustly investigated and disciplined Mr. LaFavor who was
ill from on the job stress precipitated by unequal employee treatment and lack
of the training necessary to perform the work requested of him.
6. That the Burlington Northern Railroad operated outside of its
jurisdiction when it investigated and disciplined Mr. LaFavor while he was on
medical leave of absence.
7. That the Burlington Northern Railroad failed to provide the
required burden of proof regarding its charges against Mr. LaFavor to justify
the discipline assessed.
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8. That accordingly, the Burlington Northern Railroad be ordered to
make Mr. LaFavor whole by compensating him for all wages lost while unjustly
withheld and later suspended from service as the result of the subject
incident. Claim also amounts to the removal of all record of the subject
investigation and discipline from Mr. LaFavor'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 employes 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.
On January 30, 1987, the Claimant was employed as an electronics
technician headquartered at the radio shop at Parkwater, Washington. Shortly
after arriving for work, he was instructed by his immediate Supervisor to
report to Yardley yard and work on the video equipment that had malfunctioned
at that location. Upon receiving those instructions, the Claimant became
upset. He then proceeded to call the Communications Supervisor who instructed
him to comply with those instructions. After receiving the same instructions
from the Supervisor to assist in the repair of the TV monitors, the Claimant
went home claiming illness. The Carrier was not aware of the fact that the
Claimant has been under the care of a psychiatrist in Minnesota since 1973 for
job related stress; nor was the Carrier aware of the Claimant's fear of TV's
due to a previous bad experience.
On February 2, 1987, the Claimant received a notice of Investigation
for alleged failure to comply with instructions, alleged insubordination and
alleged falsification for reason to be absent after being instructed to repair
video equipment. After a Hearing held on June 2, 1987, the Claimant was
informed on June 19, 1987 that the Investigation established him in violation
of Rules 563, 564 and 570.
The Organization argues that the Carrier violated its own "safe
course" rule and Rule 210(a) which requires employees to have proper instructions; that the Claimant trained in low voltage radio and that the Carrier
required him to work on hi-voltage video equipment on January 30, 1987 while
denying him available training.
The Carrier claims that the Claimant had not mentioned to anyone upon
arrival at the job site that he was ill nor had he mentioned to anyone on that
day or earlier that he had a "stressed out" condition. Carrier further states
that the Claimant was not expected to complete the work himself and was offered the assistance of a communications technician whose purpose was to train
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the Claimant and repair the TV monitors. Rather than accept the offer to
learn, the Carrier claims that the Claimant went home sick.
The Board finds that the Claimant was remise in not informing the
Carrier of his years of job related psychiatric care and his fear of TV's.
Consequently, the Claimant's behavior was understandably interpreted as
insubordination. Claimant never requested the assistance of a shop steward.
Such a request, with disclosure by the Claimant, could have avoided the
resultant disruption. Management can only respond to what it knows at a
particular time. Thus, the Board finds that on January 30, 1987, the Claimant
was in violation of Rules 563, 564 & 570.
The Board has reviewed the numerous procedural arguments made
pursuant to the Statement of Claim and finds that all necessary consideration
was given to the Claimant regarding postponement of the Investigation and that
all procedural requirements were met, it appearing that a complete record was
developed at the Investigation.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest:
ncy J. er - Executive Secretary
Dated at Chicago, Illinois, this 4th day of October 1989.