Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
SECOND DIVISION
Award No. 13737
Docket No. 13632
03-2-01-2-39
The Second Division consisted of the regular members and in addition Referee
Robert Richter when award was rendered.
(International Brotherhood of Electrical Workers
PARTIES TO DISPUTE:
(Burlington Northern Santa Fe Railway Company
STATEMENT OF CLAIM:
"l. That in violation of the current Agreement, Rule 35 in particular,
Electrician Rodney E. Blakeman was unjustly dismissed from the
service of the Burlington Northern/Santa Fe Railroad company
following an investigation held on April 27, 2000.
2. That the investigation held on April 27, 2000 was not a fair and
impartial investigation under the terms required by the rules of the
current Agreement.
3. That accordingly, the Burlington Northern/Santa Fe Railroad
Company be directed to return Electrician Rodney E. Blakeman to
its service and he be made whole with respect to all lost wages,
rights, benefits and privileges which were adversely affected by the
unjust dismissal from service. In addition, that all record of this
matter be removed from Rodney E. Blakeman's personal record
all in accordance with Rule 35 of the controlling Agreement."
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.
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Award No. 13737
Docket No. 13632
03-2-01-2-39
This Division of the Adjustment Board has jurisdiction over the dispute involved
herein.
Parties to said dispute were given due notice of hearing thereon.
On May 23, 2000 the Carrier dismissed the Claimant from its service. As a result
of an Investigation held on April 27, 2000 the Carrier found that the Claimant violated
Rules S-28.6 and S-28.9. The Claimant was sentenced to jail for violating probation by
being found guilty of DUI for the third time.
This case is a companion to the case in Second Division Award 13738.
There is no dispute to the facts in this case. On November 27,1996 the Claimant
pled guilty to DUI for the third time, and was sentenced as follows:
"(1) Defendant shall be placed under the supervision of the Chief Court
Service Officer of this Judicial Circuit, or his representative
thereof, for a period of 4 years.
(2) Defendant shall obey all the conditions placed upon him by the
Court Service Officer (said conditions to be attached and
incorporated by reference with the Order and to be signed by the
Defendant).
(3) Defendant shall pay costs in the amount of $26.50 + $64.00 and pay
a fine in the amount of $1,000.00. Said fine and costs shall be paid
today.
(4) Defendant shall serve 45 days in the Lawrence County Jail.
Defendant can serve his time in Nebraska at his expense with work
release.
(5) Defendant shall pay a probation supervision fee of $25.00 per
month.
(6) Defendant shall violate no laws during the time of his probation.
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03-2-01-2-39
(7) Defendant shall not possess or consume alcoholic beverages or
mind altering substances during the term of his probation.
(8) Defendant shall submit to a warrantless search and seizure of his
blood, breath or urine, person, possessions or residence at the
request of any law enforcement officer or his court service officer.
(9) Defendant shall continue in alcohol treatment and attend . . . ."
On March 23, 2000 the Claimant was sentenced to two years in jail as a result of
another DUI, which began on April 2, 2000.
The Carrier found that the Claimant violated Rules S-28.6 and S-28.9 which
read:
"S-28.6 Conduct
Employees must not be:
(1) Careless of the safety of themselves or others
(2) Negligent
(3) Insubordinate
(4)
Dishonest
(5) Immoral
(6) Quarrelsome
or
(7) Discourteous
S-28.9 Respect of Railroad Company
Employees must behave in such a way that the railroad will not be
criticized for their actions."
The Carrier bears the burden of proving the Claimant violated its Rules.
Nowhere in its Submission does the Carrier explain how Rule S-28.6 was violated. It
did argue that the Claimant's conduct was reprehensible and damaged the Carrier's
reputation in Alliance, Nebraska. However, the record is void of any evidence that the
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03-2-01-2-39
Claimant's action was reported in the newspapers. The Claimant was in jail in South
Dakota not Nebraska. Nor did the Carrier show it lost business as a result of the
Claimant's actions.
The Carrier has failed to meet its burden in this case and the claim will be
sustained. However, because Award 13738 upholds the dismissal of the Claimant, the
Claimant will remain dismissed, with this discipline removed from his record.
AWARD
Claim sustained in accordance with the Findings.
ORDER
This Board, after consideration of the dispute identified above, hereby orders
that an award favorable to the Claimant(s) be made. The Carrier is ordered to make
the Award effective on or before 30 days following the postmark date the Award is
transmitted to the parties.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Dated at Chicago, Illinois, this 30th day of June 2003.