Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 12080
SECOND DIVISION Docket No. 11901
91-2-90-2-8
The Second 'Division consisted of the regular members and in
addition Referee Donald E. Prover 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 governing agreement, Electrician Robert
M. Sierra was unjustly suspended from the service of the Burlington Northern
Railroad for a period of thirty (30) days following an investigation held on
November 29, 1988.
2. That the investigation and the assessment of discipline was not
fair and impartial as required by the terms of the governing agreement.
3. That accordingly, the Burlington Northern Railroad should be
directed to compensate Electrician Sierra for all wages lost, including
available overtime during the thirty (30) day suspension and that this Board
should further direct the Burlington Northern Railroad to make Electrician
Sierra whole for all other rights, benefits and privileges to which he was
entitled and of which he was deprived by the unfair suspension.
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 employer involved in this
dispute are respectively carrier and employer 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 was an Electrician assigned to Carrier's Northtown Diesel
Shop in Minnesota; assigned hours 11:00 P.M. to 7:00 A.M. During his assigned
hours on October 18-19, 1988, the Claimant performed an electrical inspection
of the traction motors of BN Locomotive 3139, a GP-50 model. The Claimant
"signed off" on the periodic inspection sheet indicating there were no notable
defects nor requirements for further maintenance. The locomotive was placed
back in service. Special instructions (MNT 124) had been issued with respect
to work to be performed in conjunction with the inspection. One of the instructions pertained to the checking and replacement of carbon brushes in
traction motors.
Form 1 Award No. 12080
Page 2 Docket No. 11901
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On November 3, 1988, the Superintendent while reviewing the "Failed
Locomotive Report," noticed that Locomotive 3139 had failed in Chicago on
November 1, 1988. Traction motor number 2 had failed due to a short circuit
caused by worn brushes and numbers 1, 3, and 4 traction motors were in need of
"rebrushing," i.e., the brushes of these motors needed to be exchanged for new
brushes.
On November 5, 1988, the Superintendent requested the management at
Chicago to collect the brushes from Locomotive 3139 and ship them along with
traction motor number 2 to him. Upon arrival of the number 2 motor at Northtown it was rebrushed because it was discovered the brushes were virtually
destroyed and were in very bad shape. The motor was completely checked over
at this time and no other defects were discovered. The motor was subsequently
placed back in service.
Under date of November 12, 1988, the Claimant was notified to attend
an investigation; charged as follows:
"Arrange to attend investigation in the Conference
Room, Northtown Diesel Shop, Minneapolis, Minnesota,
at 7:30 AM on Tuesday, November 22, 1988 for the
purpose of ascertaining the facts and determining
responsibility for your alleged failure to comply
with instructions from proper authority, specifically
MMC instruction MNT 124 during electrical maintenance
on locomotive BN 3139 at Northtown Diesel Shop on
October 18, 1988 with resultant online failure of
BN 3139 on Train 01-058-02 into Chicago at approximately 1645 hours on November 2, 1988 with subsequent
defective traction motor changeout and repair."
Following the Investigation, under date of December 14, 1988, the
Claimant was notified in part as follows:
"the following entry will be made on your personal
record:
'Suspended from the service of Burlington Northern
Railroad Company for a period of thirty (30) days
effective Saturday, December 17, 1988 through
Sunday, January 15, 1989, both dates inclusive,
for violation of Rule 576 of the Burlington
Northern Safety Rule Book, Form 15001, in connection with your failure to comply with instructions from proper authority on October 18, 1988 at
Northtown Diesel Shop, Minneapolis, MN.'
Be advised, your personal record was taken into consideration in the assessment of this discipline."
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Page 3 Docket No. 11901
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The Employees argue the investigation was not fair and impartial
because under similar circumstances other employees had been counseled rather
than having to undergo an investigation. We do not agree with the Employees
contention in this case. In our opinion a carrier has the prerogative (unless
otherwise restricted by Agreement) to either counsel an employee or to hold a
formal investigation when it appears there has been a Rule violation. Many
factors including an employee's past record, can enter into a decision as to
which course to follow. In the instant case the Carrier chose to hold an
investigation.
We have reviewed the investigation testimony and find that the investigation was held in a fair and impartial manner.
The Employees argue that the Carrier failed to prove its charges
against the Claimant. From our review of the investigation testimony it is
our conclusion that sufficient evidence was developed to support a finding of
"guilty." The Claimant admitted to having inspected traction motor No. 2 on
October 18, 1988.
Carrier witnesses testified to the effect that the only plausible
explanation for the failure of traction motor No. 2 was the Claimant's failure
to change the carbon brushes (as called for by MNT 124) when he inspected the
motor on October 18. The Employees argue that the motor could have failed for
other reasons. We believe Carrier witnesses successfully rebutted this argument. The fact that no other defects were noted when the motor was inspected
after the incident and worked properly after being rebrushed supports the
Carrier's position. While the record is not without its uncertainties, we
believe the evidence is of sufficient force to provide a reasonable basis for
Carrier's conclusions and they do not appear to be unreasonable or capricious.
Accordingly we find the discipline imposed in this case was warranted and not
excessive.
The Employees take exception to the Carrier using Claimant's past
record when determining the amount of discipline to be assessed because the
record was not included in the investigation. We find no merit to this argument. We agree with what was said in Second Division Award 6710, i.e.,
"It is immaterial that Claimant's prior work record
was not entered at the investigation hearing. Carrier still has the right to consider that record for
the purpose of determining the penalty."
A W A R D
Claim denied.
Form 1 Award No. 12080
Page 4 Docket No. 11901
91-2-90-2-8
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest: ..
N-, ··~anc~y J. r - Executive Secretary
Dated at Chicago, Illinois, this 10th day of July 1991.