Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
SECOND DIVISION
Award No. 13539
Docket No. 13401
00-2-98-2-90
The Second Division consisted of the regular members and in addition Referee
James E. Conway when award was rendered.
(Brotherhood of Railway Carmen Division
( Transportation Communications International Union
PARTIES TO DISPUTE:
(Springfield Terminal Railway Company
STATEMENT OF CLAIM:
"Claim
of
the Committee
of
the Union that:
1. That the Springfield Terminal Railway Company violated the terms
of our current agreement, in particular Rule 13.1 when they
arbitrarily entered a memo suggesting discipline into the file and
record of James Besemer. Furthermore, the carrier also threatens
discipline for future safety rule violations.
2. That, accordingly, the Springfield Terminal Railway company be
ordered to removed the memorandum from the file and record
of
Carman James Besemer."
FINDINGS:
The Second Division
of
the Adjustment Board, upon the whole record and all the
evidence, finds that:
The carrier or carriers and the employee or employees involved in this dispute
are respectively carrier and employee 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 were given due notice of hearing thereon.
Form 1 Award No. 13539
Page 2 Docket No. 13401
00-2-98-2-90
On August 28,1997, the Carrier conducted a "Safety Review" with the Claimant
following an on-duty injury incurred the previous day while working on a derailment
which had resulted his temporary assignment to light duty. At the time of the accident,
the Claimant had been serving as a Carman/Crane Operator at the Carrier's Car
Repair Facility, Lowell, Massachusetts, for approximately ten months. On September
9, 1997, the Carrier documented this meeting with the following memorandum to
his file:
"On August 28, 1997, A Safety Review was held on behalf
of
Mr. J. P.
Besemer. Present at this meeting were Mr. Besemer, Mr. M. J. Raylinsky,
Mr. J. E. Austin, Mr. T. Jarrett, and myself, Mrs. T. W. McNulty.
The purpose
of
this meeting was to explain to Mr. Besemer the importance
of
complying wit the company's safety rules. We explained to Mr.
Besemer that no violation of the safety rules was acceptable at any time.
We discussed how even the most minor rules violation could lead to an
injury.
We told Mr. Besemer that he must think before performing every task,
anticipate potential hazards and work to avoid them. We explained the
compliance with the rules was essential in performing our work safely.
Mr. Besemer was informed that the carrier did not feel it was obligated to
re-train employees continuously on the safety rules. Once an employee has
been satisfactorily trained they are expected to comply with the rules
100%. We told Mr. Besemer that any future safety rules violations would
be dealt with in a disciplinary manner.
At this point Mr. Besemer was asked if he understood what our purpose
was for holding this meeting. He indicated that he understood our purpose
and intentions. Following this Safety Review Mr. Besemer received 2 days
of Safety training classes."
The Organization contests the Carrier's insertion of this memo is in violation of
Rule 13.1, arguing that it constitutes or threatens discipline without a fair and impartial
Hearing. Additionally, it asserts that the Carrier failed to issue a proper denial at either
the first or second steps of claim handling on the property.
Form 1 Award No. 13535
Page 3 Docket No. 13401.
00-2-98-2-90
While the memo at issue may, in our view, cozy up to the line of accusation, on
balance it cannot be fairly considered as disciplinary in nature or threatening discipline,
or its placement in the Claimant's file be seen as a violation of Rule 13.1 requiring a
Hearing before discipline is imposed. The memo makes no reference to the Claimant's
injury; does not expressly recite that the Claimant has been responsible for violating a
Safety Rule; and does not state that it will be used in the context of a future incident to
support assessment of more severe discipline. Rather, it appears to the Board to be a
firmly worded reaffirmation of the need to comply with established Safety Rules and
avoid unnecessary hazards. Nor can assigning the Claimant to two days of further
training with full pay legitimately be characterized as discipline. Lastly, any attempt
by the Carrier to cite this memo in some future matter as evidence of a prior offense is
an argument appropriately made at that time; for purposes of this claim it is speculative
and premature.
Our review of the established authority on related issues suggests that the Board
has uniformly held that letters of warning are not discipline in the conventional sense.
In Second Division Award 8062 "[T]his Board has consistently maintained the position
that letters of warning are not disciplinary in nature, and that their insertion in an
Employee's file is not in violation of the investigation requirements of most agreements."
The Carrier objects to Board consideration of the Organization's procedural
argument relating to failure to provide a proper answer in claim handling as not
asserted earlier on the property and thus beyond our jurisdiction. A careful review of
the record supports that contention. At no point during prior handling or in its
Submission were these arguments made. Accordingly, they are beyond the scope of our
review.
For the reasons stated above, the claim respectfully must be denied.
AWARD
Claim denied.
Form 1 Award No. 13539
Page 4 Docket No. 13401
00-2-98-2-90
ORDER
This Board, after consideration of the dispute identified above, hereby orders that
an award favorable to the Claimants) not be made.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Dated at Chicago, Illinois, this 25th day of September, 2000.