NATIONAL
RAILROAD ADJUSTMENT
BOARD
THIRD DIVISION Docket Number SG-27005
(Brotherhood of Railroad Signalmen
PARTIES TO DISPUTE:
(Clinchfield Railroad Company
STATEMENT OF CLAIM: "Claim on behalf of the General Committee of the Brotherhood of Railr
road (Clinchfield):
On behalf of Signal Foreman R. 0. Moore for reinstatement to service
account of being dismissed from service by Carrier for alleged rule violations
on February 22, 1985. Carrier file 15-50 (85-14)L."
OPINION OF BOARD: The Notice of Investigation involved here was dated January
30, 1985. It required Claimant's attendance on February
13, 1985, in connection with an accident of January 28, 1985. It charged
violation of several safety related rules. The Notice was sent by Certified
Mail, postmarked January 31, 1985, but was not received by Claimant until
February 7 or 8, 1985, according to the Organization. Rule 50 of the Agree
ment provides in part that "Charges will be made within five days . . . .
At the Investigation the Organization objected to proceeding on the basis
that Claimant was "not charged within the five (5) days set forth in Rule 50
The Investigation proceeded. It established that Claimant, who was a
Foreman, and his gang arrived at a job site at about 10:30 A.M. An operator
of a backhoe who worked for a Contractor arrived shortly thereafter. The
operator had never worked with Claimant's gang before but Claimant did not
inquire if he had any prior experience working around trains. The operator was
to dig a ditch. Claimant showed him where it was to be dug and the operator
began working at about 11:00 A.M. or 11:05 A.M. The site was 150 to 200 yards
from a curve. Claimant did not post any flags nor did he seek any information
regarding train movements or take any other steps to protect the operator or
his equipment. Within a very few minutes the operator, who was working close
enough to foul the track was struck by a train coming around the curve. He
was thrown 30' and injured. Damage to the machine was in excess of $14,000.00.
At the Hearing after all testimony was received the Hearing Officer
excused all witnesses and stated "we will review the personal record . . ." of
Claimant. That record, which became part of the Transcript consisted of five
letters written to Claimant by Carrier officials over the period October, 1979
- December, 1983, regarding items such as expense account irregularities, garnishments, attendance,
There was also a letter of commendation in February, 1979. Also included was
a letter dated February 2, 1985, addressed "To Whom It May Concern" and signed
by seven members of Gang 17. It complained of numerous instances of alleged
unsafe practices by Claimant going back to at least June of 1984, and including the January 28, 1985
Three of the gang members who signed the letter testified at the Investigation.
Award Number 26401 Page 2
Docket Number SG-27005
on February 22, 1985, Claimant was notified that "Evidence developed
at the investigation clearly established that you were guilty as charged" and
he was immediately dismissed.
On March 2, 1985, the General Chairman appealed, asserting a violation of Rule 50 and stating:
"Also, we reserve the right to add to this appeal
and/or change once we receive copy of transcript of
investigation and/or hearing."
After the Chief Communications 6 Signals Officer declined the appeal
the General Chairman appealed to the Director of Labor Relations on March 22,
1985, again asserting violation of Rule 50 and stating:
"We object to Mr. Moore personal record being a
part of the transcript."
on April 8, 1985, the Director of Labor Relations responded in part:
"We have carefully reviewed your appeal and it is,
indeed, noteworthy that you have obviously conceded
Mr. Moore's guilt, having based your appeal solely
on your perception of procedural improprieties.
These allegations contained in your previous
correspondence and in your appeal to this office
regarding this matter are totally without merit."
After further correspondence and discussions the General Chairman
wrote the Director of Labor Relations on October 1, 1985, that:
"We ask at this time, notwithstanding the precedual
(sic) improprieties, the discipline assessed Mr.
Moore is excessive and not commensurate with the
alleged offense."
On November 25, 1985, the Director of Labor Relations responded:
. . . as previously pointed out by this office,
the discipline assessed was fully warranted in view
of the serious nature of the offense. Claimant's
negligence resulted in substantial property damage
Award Number 26401 Page 3
Docket Number SG-27005
and personal injury to the contractor's back hoe
operator. There was absolutely no excuse whatsoever for Claimant's indifference to duty and his
record indicates that he is (sic) previously been
the subject of complaints from his fellow employees
for safety related matters."
Contrary to the Organization this Board is of the view that the
charges were "made" within the meaning of Rule 50 when properly addressed
charges were placed in the Mail system.
Consideration of an employee's past record, good or bad, in assessing
the extent of discipline, once it has been established that charges have been
proven, is legitimate. It is obviously necessary to use discrimination in
determining just what constitutes a past "record" that may be considered.
Here there were several discipline letters from Carrier to Claimant. He
obviously had an opportunity to challenge or respond to those if he thought it
appropriate. Reliance on such items is justified. However the letter of
February 2, 1985, is an entirely different matter. There is nothing to
suggest Claimant had ever seen this letter or knew of it, at any time prior to
conclusion of the testimony at the Hearing. He had never been confronted with
or given an opportunity to respond to its allegations (except the one regarding the incident under i
testified at the Investigation. They were asked no questions regarding the
contents of the letter. Of course Claimant could not do so as he didn't know
of its existence. Thus none of the numerous allegations covering at least a
six month period had ever been the subject of any inquiry or verification
(again except for the January 28, 1985, incident). We do not believe that
allegations which have never been investigated or corroborated and with which
an employee has never been confronted can be considered in assessing discipline. The potential for a
There was substantial evidence at the Investigation for Carrier to
conclude the charges against Claimant had been proven and it is not for us to
question Carrier's judgment in that regard.
This Board recognizes that once responsibility has been established
it is not our function to second guess the extent of discipline in the absence
of circumstances showing the penalty was "unjust, unreasonable or arbitrary."
(Third Division Award 16800.) That Carrier relied to some extent upon the February 2, 1985, letter i
Labor Relations' November 25, 1985, letter citing it in response to the contention the discipline wa
and unfair. Accordingly, we must require Claimant's reinstatement with seniority unimpaired, but wit
FINDINGS: The Third Division of the Adjustment Board, upon the whole record
and all the evidence, finds and holds:
That the parties waived oral hearing;
Award Number 26401 Page 4
Docket Number SG-27005
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, 1934;
That this Division of the Adjustment Board has jurisdiction over the
dispute involved herein; and
That the discipline was excessive.
A W A R D
Claim sustained in accordance with the Opinion.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest:
Nancy J. ver - Executive Secretary
Dated at Chicago, Illinois, this 13th day of July 1987.
CARRIER MEMBERS' DISSENT TO
Award No. 26401, Docket No. SG-27005
John E. Cloney, Referee
In rendering this Award the Majority has chosen to ignore
the ever growing list of well reasoned Awards of this Board which have
consistently held that the Board has no authority to render a decision
on an issue that was not specifically identified during the handling of
the claim or grievance on the property.
It is the intent of the Railway Labor Act that all issues in
a dispute before the Board shall be framed by the parties in the "usual
manner" of handling claims and grievances on the property.
Otherwise, the parties to the dispute are deprived of fundamental due
process rights necessary to develop the facts and present their
respective positions on the issue as it pertains to the dispute.
This dispute involved a Signal Gang Foreman on the
Clinchfield Railroad who was dismissed for his failure to comply with
safety rules requiring proper protection against train movements and
his responsibility for a contractor's backhoe being struck by a train
coming around a curve causing injury to the operator and very costly
damage to the equipment.
There were two issues before the Board: (1) the
Brotherhood's allegation that the disciplinary action should be set
aside because the notice of Investigation/letter of charge was not
timely received by the accused, an alleged violation of Rule 50, the
discipline rule; and (2) the Brotherhood's allegation that the penalty
assessed (dismissal) was excessive for the offense.
After recognizing that the charges were timely made, that the
charges were proven, and that it is not the Board's function to substitute its judgment for the Carr
The Award ordered the Claimant's reinstatement with seniority
unimpaired, but without backpay - not because his offense did not
warrant dismissal or because of any mitigating circumstances justifying
leniency, but because of the Majority's totally erroneous opinion that
in assessing discipline the "Carrier relied to some extent" on a
February 2, 1985 letter from the seven members of the Claimant's gang
complaining about the Claimant's unsafe practices, which letter was in
the Claimant's personal record file that was reviewed at the
investigation. That was not an issue before the Board.
Carrier Members' Dissent - Award No. 26401
At the beginning of the investigation the Claimant's
representative (Local Chairman) did protest reviewing his personal
record during the investigation, contending this was prohibited by Rule
50, and during handling on the property the Claimant's representative
(General Chairman) did protest his personal record being a part of the
transcript without giving a reason; however, those were alleged
procedural errors that were abandoned by the Brotherhood and not
mentioned in the Brotherhood's Ex Parte Submission or Rebuttal.
There was no challenge of the February 2, 1985 letter as part
of the Claimant's personal record at the investigation, during the
handling on the property, or before the Board; and there was never an
allegation by the Brotherhood that the Carrier relied on the letter in
assessing discipline. Nevertheless, the Award states:
"There is nothing to suggest Claimant had ever seen
this letter or knew of it, at any time prior to the
conclusion of the testimony at the Hearing. He had
never been confronted with or given an opportunity
to respond to its allegations (except the one
regarding the incident under investigation). Three
of the signers of the letter testified at the
Investigation. They were asked no questions
regarding the contents of the letter. Of course
Claimant could not do so as he didn't know of its
existence. Thus none of the numerous allegations
covering at least a six month period had ever been
the subject of any inquiry or verification (again
except for the January 28, 1985 incident). We do
not believe that allegations which have never been
investigated or corroborated and with which an
employee has never been confronted can be
considered in assessing discipline. The potential
for abuse in holding otherwise seems obvious."
It is _not true that the Claimant had never been confronted
with or given an opportunity to respond to the letter. Following the
review of the Claimant's personal record at the investigation, which
included the letter, Claimant Moore and his representative were asked
by Conducting Officer Moore if they had questions of anyone prior to
the close of the investigation, as evidenced by the transcript:
"Q. Mr. Moore, do you have any questions at this
time? Do you have any questions of anyone at
this time?
A.
No
sir.
"Q. Mr. King, do you have any questions of anyone?
A.
No
sir, I don't believe so.
"Conducting Officer Moore comments: If there is
nothing else then, we will proceed to close these
proceedings.
- 2 -
Carrier Members' Dissent - Award No. 26401
"Q. Mr. Moore, do you feel that this investigation
has been held in a fair and impartial manner?
A. Yes sir.
"Q. Mr. Ring, do you feel that this investigation
has been held in a fair and impartial manner?
A. I would really like to see the transcript of it
before I render a decision on that."
It is _not true that the Carrier relied on "the letter" in
assessing discipline. Following the investigation, the Assistant Chief
Engineer-Signals Construction gave the following reason for the
decision to dismiss the Claimant in letter dated February 22, 1985:
"Evidence developed at the investigation clearly
established that you were guilty as charged.
"Accordingly in view of your proven guilt, you are
hereby dismissed from service effective
immediately."
The Carrier was entirely justified in dismissing the Claimant
for his offenses. There was no need to bolster that decision by
relying on his prior record and the Carrier did not do so. The
Majority ignored this fact and stated in the Award:
"That Carrier relied to some extent upon the
February 2, 1985 letter in assessing discipline is
clear from the Director of Labor Relations'
November 25, 1985 letter citing it in response to
the contention the discipline was excessive. We
view that reliance as unreasonable and unfair.
Accordingly, we must require Claimant's
reinstatement with seniority unimpared, but with
no backpay."
The Majority confused the February 22, 1985 decision on
discipline with the November 25, 1985 decision on the appeal. The
General Chairman's October 1, 1985 letter can only be characterized as
a plea for leniency; and the remarks by the Director of Labor Relations
in the November 25, 1985 letter, which were seized upon by the
Majority to justify the decision in this case, were not to bolster the
Carrier's February 22, 1985 decision to dismiss the Claimant for his
offenses, but to bolster the Carrier's November 25, 1985 decision to
deny the plea for leniency.
A Board decision based on an issue that was never before the
Carrier during handling on the property or at Board level is far more
than unreasonable and unfair - it deprives the Carrier of its
fundamental due process rights guaranteed by the Railway Labor Act
and the Rules of this Board.
- 3 -
Carrier Members' Dissent - Award No. 26401
Award No. 26401 is based on the Majority's speculative and
erroneous decision on an issue which was not raised during the
handling of the dispute on the property and which was not before the
Board. The Award is palpably erroneous and we vigorously dissent
thereto.
M. C. Lesnik
M. W. inger`ut
°R. L. Hicks
.
Varga
E. Yost
August 10, 1987
4