Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 12225
SECOND DIVISION Docket No. 11991
92-2-90-2-98
The Second Division consisted of the regular members and in
addition Referee Robert 0. Harris when award was rendered.
(Brotherhood Railway Carmen/Division of TCU
PARTIES TO DISPUTE:
(Union Pacific Railroad Company
STATEMENT OF CLAIM:
1. That the Union Pacific Railroad Company (hereinafter "carrier")
violated Rule 31 of the Controlling Agreement between Transportation Communications International Union - Carmen's Division and Missouri Pacific Railroad
Company (Union Pacific System) (revised September 1, 1981) on May 26, 1989,
when it suspended carman Carl Hickerson (hereinafter claimant) for thirty (30)
days on account of alleged violation of General Rule 607(1) - 607(2), Rule
4000, Blue Flag Rule 4026 and General Rule B.
2. That the carrier violated the time limit rule of Rule 31(b) by
failing to conduct the investigation within twenty (20) days of the alleged
occurrence; violated Rule 31 by failing to apprise claimant of the precise
charge; violated Rule 31(f) by failing to furnish to the union, before the
investigation, copies of all documents proposed to be used at the investiga
tion; violated Rule 31 in failing to afford the claimant fair and impartial
investigation; violated Rule 31, in refusing to allow the union to tape record
the investigation; violated Rule 31 in failing to allow the union to call
D. K. Barnes as a witness; violated Rule 31 when discipline was assessed on
the basis of General Rules 607(1) and 607(2) when these Rules were not cited
in the notice of investigation or mentioned during the investigation; and
violated Rule 31 because the evidence in the investigation showed no rule
violation by claimant and no imposition or discipline of any kind was justi
fied.
3. That accordingly, the carrier be ordered to clear the record of
claimant Carl Hickerson of the above charges; that he be allowed compensation
for 30 days and all other time lost as a result of his unjust suspension; that
he be made whole for vacation rights; loss of health and insurance benefits,
pension benefits including Railroad Retirement and unemployment insurance, and
any other benefit of employment he would have earned during the period of his
unjust suspension; and that the carrier allow claimant an additional amount of
6% per annum compounded annually on the anniversary date of the claim.
FINDINGS:
The Second Division of the Adjustment Board upon the whole record and
all the evidence, finds that:
Form 1
Award No. 12225
Page 2 Docket No. 11991
92-2-90-2-98
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.
Claimant is employed as a car inspector at Carrier's Lesperance
Street Yards, St. Louis, Missouri. On May 26, 1989, Claimant was assessed
a thirty-day actual suspension for removing the blue flag from Track 41 at
approximately 3:00 P.M., April 2, 1989, while carmen were still working in
the track. Claimant was charged with violations of Blue Flag Rule 4026 and
General Rule B and Rule 4000 on April 24, 1989. The Hearing was originally
set for May 1, but was postponed at the Organization's request on April 26
until May 17, 1989.
It is the contention of the Organization that Rule 31 which requires
a hearing within 20 days of the date of the alleged violation was violated.
It is the Carrier's contention that the exception to the 20-day rule where the
alleged offense involves serious personal misconduct is applicable and so the
matter was handled in a timely manner.
Rule 31 reads in pertinent part:
"(a) An employe covered by this Agreement who
has been in service more than 60 days shall not be
disciplined or dismissed without first being given a
fair and impartial investigation by an officer of the
railroad. An employe may be withheld from service
pending investigation in major violation cases.
(b) At a reasonable time prior to the investigation, the employe shall be apprised of the
precise charge against him and the time, date and
place set for investigation. Such investigation
shall be held within 20 days from the date of the
occurrence(s) on which the charges are based except,
in cases of serious personal misconduct, the investigation will be held within 20 days from the date
the employer's supervisory officer has knowledge or
reasonably should have had knowledge of the occurrence(s). If the Carrier fails to hold the investigation within the time limits set forth or the
date(s) to which postponed, the record of the employe
Form 1 Award No. 12225
Page 3 Docket No. 11991
92-2-90-2-98
shall be cleared of the charge(s). The employe shall
have a reasonable opportunity to secure the presence
of necessary witnesses and representative, if he so
desires. A copy of the notice directing the employe
to report for investigation shall be furnished to the
Local Chairman of the craft involved, but failure to
furnish the Local Chairman with copy of the notice
shall not constitute a procedural error sufficient to
void the investigation or subsequent disciplinary
action. Requests for postponement of an investiga
tion by the employe, his duly authorized represen
tative or the Carrier will be granted for reasonable
purposes."
Serious personal misconduct has generally been construed to mean
theft or physical action taken against another employee. The Carrier has
cited no cases where it has been applied to a simple rule violation. Yet if
that exception is not applicable, the charges against Claimant were not
brought in a timely fashion since the Carrier admits that the matter was
delayed while the Local Manager was on vacation.
The purpose of Subsection (b) of Rule 31 is to insure speedy action
on the part of the Carrier. The mere fact that a Local Manager is on vacation
is not sufficient reason to delay charges being filed against an individual
employee, especially in a case such as this where the facts were in dispute.
The alleged violation of the Blue Flag Rule is not within the definition of
serious personal misconduct and the charges against Claimant must be dismissed..
All record of the discipline will be expunged from Claimant's record and he
will be made whole for lost wages and other benefits. The request for interest is denied.
A W A R D
Claim sustained in accordance with the Findings.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest:
e~z.-"dw~o_
01
Nancy J. r - Executive Secretary
Dated at Chicago, Illinois, this 8th day of January 1992.