NATIONAL RAILROAD ADJUSTMENT
BOARD
THIRD DIVISION Docket Number SG-24262
Tedford E. Schoonover, Referee
(Brotherhood of Railroad Signalmen
The Washington Terminal Company
STATEMENT CF CTAIM: "Claim of the General Committee of the Brotherhood of Railroad
Signalmen on the Washington Terminal Company:
Appeal of discipline (20-day suspension) assessed R. J. Dunivin."
OPINION OF BOARD: The specific charges upon which discipline was based were:
"1. Dereliction of your duties and responsibilities of a
Leading Maintainer C&S, 12:00 Midnight to 8:00 a.m.*
K Tower, when at approximately 7:05 a.m., Thursday,
December 25, 1980, you failed to respond to a 'Main
tainer's call' from 'R' Tower which had 46o Switch
fail to go to the reverse position at 'C' Interlocking.
Further when the Maintainer C&S that had goat out on
the switch failure called for assistance at approxi
mately 7:25 a.m., you left your assignment, and
· subsequently left the property.
2. Violation of The Washington Terminal Company General
Rule 'N', that part which states, 'falsifying reports,
is prohibited,' when you filled your time card out for
a full eight
(8)
hours, showing you worked from 12:00
Midnight to
8:00
a.m., on December 25, 1980, when in
fact you left your assignment at approximately 7:25
a.m., December 25, 1980.
3. Violation of The Washington Terminal Company General
Rule '0', that part which states, 'No employe will be
absent from duty, have a substitute perform his duties,
without permission', when at approximatet y 7:25 a.m.,
December 25, 1980, you left your assignment and turned
it over to your relief without permission, when your
tour of duty is from 12:00 Midnight to 8:00 a.m."
Hearing on charges set for December 31,
1780,
was actually held on
January 7, 1981, the delay due a request by the Brotherhood. At the hearing
Claimant was represented by Vice President J. Hansen who participated in questioning
witnesses.
Round-the-clock coverage by signal maintainers is required at the
Washington Terminal due to the complexity of signal apparatus for the heavy
train traffic. It was clearly evident that the signal maintainers had a long
Award Number
211231
Page
2
Docket Number
SG-24262
standing unwritten practice of relieving each other early to take advantage of
transportation needs. All of the employee testified as to the existence of the
practice.
Claimant was assigned as lead signal maintainer from midnight to 8:00
A.M. on December
25,
1980. He was assisted by Maintainer Skiles. At
7:05
A.M,,
a trouble call was received by Claimant at the signal shop of switch malfunction
at C Tower. His partner, Skiles went to the scene of the trouble because it was
his turn, in accordance with their practice. On arriving at the scene of the
trouble at
7:15,
Mr. Skiles first thought the trouble to be electrical. He later
determined the trouble was a frozen switch. He called by telephone to the Claimant
advising he would need assistance. This call was made at
7:25.
During this
period, the Claimant called via radio to Mr. Skiles asking if he needed any tools
or equipment.
Mr. Rhodes, lead maintainer on day shift had assigned hours of
7:30
to
4:00.
He arrived at the Signal Shop at about
7:05
and overheard the conversation when the trouble call came in. He was told of the switch failure
time and saw Mr. Skiles leave the shop to respond to the call. At about
7:25
Rhodes relieved the Claimant and proceeded to the scene of the trouble. The
following conversation occurred as to Rhodes taking over responsibility:
"I would
say
approximately
7:25
he said 'you got it.'
And I said 'yes, I am going out.' I meant going out to
the failure.
Q. When you said 'yes I got it,' does that mean he was
relieved?
A. I took it for granted I relieved him at that time.
Q. Did you have permission from anyone to relieve him early?
A. No, sire"
At that point, about
7:30,
Claimant left the shop, went to his car and
presumably left for home. Mr. Rhodes, on leaving the signal shop went..to the
scene of the trouble. He took a bar to help in correcting the trouble. Mr.
David Flanders, signal maintainer on the day shift, assisting Mr. Rhodes, had
assigned hours of 8:00 to 4:00. He arrived on the job about
7:40
and learned
immediately about the switch failure. He was advised Mr. Rhodes wanted him to
bring fuses as soon as possible. He proceeded to comply and went to the scene
of the trouble by shuttle.
The Maintainers' Daily Report on the incident was filled in by Mr. Skiles
on December
26,
the day following the incident, and was signed jointly by
Claimant Dunivin and Skiles. This was also in accordance with established
practice. The report showed
460
switch failed to go in reverse position due to
frozen cylinder. It was thawed, blocked and spiked permitting Amtrak Train 102
to depart
45
minutes late. Claimant testified repair of the trouble could not
have been shortened because a frozen switch takes just so much time to thaw, the
length of depending on the extent of the freeze.
Award Number 21:231 Page
3
Docket Number SG-24262
f
There was no evidence the trouble could have been remedied any faster
by Claimant being on the scene rather than Mr. Rhodes, his relief. Claimant was
berated for not checking on trains being delayed as a result of the malfunction.
His response was that his concern was to get the trouble corrected, not to check
on train delays. This would seem to be in accord with his responsibility as lead
signal
maintainer.
All of the signal maintainers involved in the incident testified as
to the existence of the practice of relieving early; Rhodes
wits
32 years service,
Claimant with
6
years, Skiles with
4.
years. No testimony was given to the length
of Flanders' service.
Mr. Dunivin filled out his time card for the shift .as having worked
from midnight to 8:00 A.M. wtyereas he admitted working from midnight to 7:20 A.M.
He testified that he signed his time card as working 8 hours as was normal practice
in the Signal Department to fill out the card for the normal
8
hours. He stated
he had been relieved at 7:20 A.M. He also stated he knew the trouble was still
a problem at that time but stated Mr. Rhodes, a fully qualified leading Signal
Maintainer was going to assist on the job. On the matter of the practice of
leaving early the following testimony is highly relevant:
"Q. To your knowledge, did Mr. Rhodes have permission to
relieve you early?
A. I have no idea.
Mr. Dunivin, have you ever seen instructions allowing
the practice of leaving early?
A. No, sir; but it has been a normal practice.
Q. But you have never seen instructions allowing this?
A. No, sir.
Q. Have you ever been told by anyone is authority you were
allowed to leave early?
A. Yes, sir.
Q. As a common practice?
A. As long as a qualified man was there to take my position, I
had unwritten permission to leave as long as my job was
filled by a qualified man and only if the man agrees to
take the responsibility.
Q. But this is verbal and nothing in writing?
A. Yes, sir."
Award Number 24231 Page
4
Docket Number
SG24262
The Claimant was disciplined numerous times during the period
1976-79
and this record was entered into evidence at the hearing by Carrier. The
discipline assessed in this case was based on a Carrier finding the Claimant guilty
of failing to act responsibly as a lead signal maintainer. On charges 2 and 3
he was suspended for 10 days on each. Appeal to this Board is against these
suspensions. No appeal was made to this Board on his disqualification under
Charge No. 1 which was later rescinded.
In explanation the Carrier contends it was totally unaware of the
procedure of relieving early and that if such a pros=dare existed, it was instigated by the employes
also contends the discipline was in no way arbitrary or capricious and that it
was commensurate with the offenses committed, "especially when one considers
the Claimant's discipline record".
From a practical point of view it is quite understandable that with
round-the-clock coverage a practice of relieving early would be followed. It
also appears reasonable that, with such a procedure, employes assigned to
regular shifts of
8
hours would fill out time cards and work reports for the
assigned hours rather than the exact minutes when they actually went on and off
duty. In view of the evidence reviewed herein it is hardly, credible that
"management was totally unaware of the procedure of leaving early". As a matter
of tact, Claimant's testimony that he had been given verbal permission to leave -
early was not refuted during the hearing.
There is no evidence that any of the employes were negligent in dealing
with the trouble call.
Skiles, whose
turn it was to take the call, did so
lfromptly. The call came in at
7:05
and he was on the spot of the trouble by
7:15
to
7:18,
having gone from the Signal Shop to C Tower, the scene of the
trouble. After checking into the trouble he called the Claimant for assistance
at
7:25.
In addition, the Claimant at some time during this period called Skiles
via radio asking if he needed any tools or other equipment. At
7:25
Mr. Rhodes
took over responsibility for the work and relieved Claimant. Moreover, Flanders,
the day shift maintainer under Rhodes, whose assigned hours were
8:00
to
4:00
started work at
7:40.
By his own testimony he stated:
"Stan Rhodes bad called down to Todd Cummings asking me
to bring some fuses (sic) out to him as soon as I could.
So I Jumped on the shuttle, proceeded out to him and
proceeded to work with him."
This was not a case of the night shift employes neglecting their duties
and rushing so they could leave early. On the contrary, their actions manifested
awareness of the need for continuous coverage of a critical operation and all of
them, the day shift and night shift alike, performed in accordance with established
practice. The night shift crew did its job until relieved by the day crew.
The fact that the times involved did not exactly correspond with their assigned
hours did not deter them from meeting their responsibilities.
The stance of the Carrier in this case is not clear. In the first
place the charges against the Claimant were made over the signature of C. G. Eicher,
Award Number 24231 Page
5
Docket Number SG-24262
Terminal Engineer and Department Head. Yet, at the hearing all the testimony
was given by signal employes directly involved, and all testified as to the
established practice of relieving early. It is of material importance that all
of these employes, except the Claimant were directed to participate in the hearing
as Company witnesses. No management representatives testified in refutation. It
is noted the hearing was held on January 7, 1981 but no statement in the record
claiming Carrier ignorance of the practice was made until February 2, 1981. Such
statement was first made in Mr. Shaw's letter following an appeals conference
as follows:
"Carrier is totally unaware of such a procedure and that, if
such procedure existed, it was a procedure instigated by the
employes without verbal/written permission of the Carrier.
With respect to this so-called procedure, Carrier would call
your attention to pages 11, 18 and 19 of the Transcript."
Testimony on the pages referred to deals with statements of Claimant
and Mr. Rhodes, confirming the practice of relieving early; nothing in denial of
its existence by the management. Thus, the record of the investigation hearing,
conducted under Article 6 of the labor Agreement, stands without any evidence to
support Carrier's contention of ignorance of the practice. There was no doubt in
the testimony of the employes as to the practice being well established. Why
the Carrier failed to testify as to its alleged ignorance of the practice is
not clear. In view of the evidence Carrier's claimed ignorance of the practice
is manifestly incredible. It would appear the Carrier was willing to go along
with the practice despite the prohibitions in General Rules N and 0. That the
practice was freely, openly and unanimously admitted by the employes supports a
conclusion that it was condoned by management. Especially supportive of this
conclusion was Claimant's testimony that ha had been given verbal permission to
leave early as long as there was a qualified relief man available and willing
to take the responsibility. This condition was met and his testimony stands
unrefuted on the record.
Having given its blessing verbally and/or by condonement to the long
established practice it is neither fair nor just to suddenly turn the tables
and assess discipline by insistence on the letter of General Rules.
Carrier contends the discipline was in no way arbitrary or capricious.
Also, that the discipline was commensurate with the offenses, especially when
one considers Claimant's discipline record. We might agree-on the propriety of
taking prior discipline into account if we were convinced Carrier's findings of
guilt were fair and just. But we do not agree. The evidence developed in the
investigation hearing does not support such findings. The established practice
of relieving early and making out reports for regular assigned hours is well
established on the record. That the practice was condoned by management in preference to General Ord
For these reasons it is the judgment of this Board that it was arbitrary, capricious,
unfair and unjust to disclaim knowledge of the practice and resort to those rules
in support of its disciplinary action. Carrier is directed to rescind the
disciplinary actions covered by the claims and reimburse Claimant for pay
lost during the period he was suspended from service.
Award Number 24231 Page 6
Docket Number SG-21+262
FILLINGS: The Third Division of the Adjustment Board, upon the whole record and
_ all the evidence, finds and holds:
That the parties waived oral hearing;
That the Carrier and the Employes involved in this dispute are
respectively Carrier and Employes within the meaning of the Railway Labor Act,
as approved June 21,
1931+;
That this Division of the Adjustment Board has jurisdiction over the
dispute involved herein; and
That the Agreement was violated.
A W A R D
Claim sustained.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest: Acting Executive Secretary
National Railroad Adjustment Board
By.
Rosemaria Brasch - Administrative Assistant
Dat at Chicago, Illinois, this 14th day of March
1983.
ri,
' R~CEIVED~
go Office'~H'