Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 27903
THIRD DIVISION Docket No. MW-27372
89-3-86-3-602
The Third Division consisted of the regular members and in
addition Referee Joseph A. Sickles when award was rendered.
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(Duluth, Missabe and Iron Range Railway Company
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood that:
(1) The discipline imposed upon Messrs. D. J. Michael [fifteen (15)
work days of suspension and disqualification as a Mechanic-In-Charge], L. S.
Forstrom [five (5) work days of suspension] and B. A. John [ten (10) work days
of suspension] for alleged failure to properly perform their duties as B&B
employes at the Duluth Docks on September 13, 1985 was unjust, arbitrary and
on the basis of unproven charges.
(2) Claimant Michael shall be restored to the position of MechanicIn-Charge with seniority and a
and they shall be compensated for all wage loss, if any, suffered."
FINDINGS:
The Third Division of the Adjustment Board upon the whole record and
all the evidence, finds that:
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.
On September 13, 1985, a three-man crew was assigned to install corrugated panels over a conveyo
8:15 A.M., the crew had its assignment for the day.
Mr. Michael, the Mechanic-In-Charge, (MIC), left to attend a
breakfast meeting with the Supervisor, other MICs, and the foreman. He
instructed the two mechanics on his crew to gather the necessary equipment and
prepare the worksite since they could not begin installing the panel until Mr.
Michael returned, as the job required three people.
When Mr. Michael returned from his breakfast meeting at 10:20 A.M.,
the two mechanics were just getting ready to clean up the worksite in preparation of installing the
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area at 11:15 A.M. When they began to install the panels, they discovered
that the screwshooter, an electrical device that drills holes and inserts
screws in a single operation, was not working properly.
Mr. Michael made two attempts at repairing the screwshooter. The
Claimants were able to install partially only one panel before eventually
taking the faulty tool to the electricians for repair at 2:15 P.M. Meanwhile,
they cleaned up the workshop and stored some bolts in the tool cage.
Shortly after 3 P.M., the Claimants were called into the Supervisor's
Office and questioned about their lack of progress in installing the overhead
panels on the conveyor. Subsequently, all three were charged with failure to
perform their duties. Following an investigation, Mr. Michael was disqualified as an MIC and suspend
and'Mr. Forstrom was suspended for 5 days.
The Organization maintains that the discipline was unjust, arbitrary,
and based on unproved charges. The Claimants were hampered in their efforts
by a faulty tool, the Organization states, but they performed productive work
all day. The Carrier has failed to demonstrate that the Claimants could have
completed their assignment under the circumstances.
The Organization also argues that Mr. Michael has been subjected to
dual discipline (demotion and suspension) for the same alleged offense, and
the disparate suspensions imposed are arbitrary.
The Carrier contends that the Claimants should have been able to
install a minimum of six to eight panels that day. When they first discovered
that the screwshooter was not working properly, they should have taken it to
the electrician immediately or reported the problem to supervision. Alternatively, there were other
productive than cleaning the workshop and storing bolts, the Carrier emphasizes.
As MIC, Mr. Michael bears a greater responsibility for the crew's
lack of productivity, the Carrier insists, and he previously has been disciplined. Mr. John also has
assessed the least severe penalty because his prior record has no incidents of
this type.
In the handling on the property, the Organization argued that this
crew had been "set up" by the Supervisor, who was on some type of "witch
hunt." Letters read into the record at the investigation alleged that the
Supervisor had intentionally given Mr. Michael an assignment he felt the MIC
could not handle. The Organization did not pursue this issue in its Submission before this Division,
Mr. John appealed his discipline solely on the grounds that he had
not received a copy of the transcript of the investigation within 20 days. It
was not until the Submission to this Division that the merits of the discipline were raised in Mr. J
cited by the Organization, imposes a 20-day limit only on the rendering of any
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discipline following an investigation; the Rule does not impose a time limit
on furnishing a transcript. In any case, the Carrier observes, the Claimant
received a copy of the transcript on the 20th day after the hearing.
We concur with the Carrier's arguments on the above issues regarding
Mr. John's appeal. Rule 10(c) does not specifically require that a transcript
be furnished within 20 days of the hearing. Moreover, the investigation was
conducted on October 9, 1985, and the postal receipt for the transcript was
signed for on October 29, 1985. Therefore, even if it can be argued that Rule
10(c) infers a 20-day time limit, that limit was not exceeded. Since an alleged violation of Rule 10
property, we deny his Claim.
We note for the record that we specifically disagree with the Carrier's contention that Mr. John
since he no longer is an employee (a claim the Carrier never raised on the
property). Subsequent to this incident, Mr. John was dismissed for an unrelated matter, and that dis
bearing on his rights under the Railway Labor Act to challenge disciplinary
action taken against him when he clearly was an employee.
On the merits of the charges against Mr. Michael and Mr. Forstrom, we
are satisfied that the Carrier has established that the Claimants were derelict in the performance o
to Mr. Michael's return from the breakfast meeting, the two mechanics gathered
the tools and equipment needed for the job and connected extension cords to
the power source. These activities could not have consumed two hours if the
Claimants had been at all diligent. Mr. Michael admitted that he had never
before repaired a screwshooter or even taken one apart, yet he did not seek
help from anyone qualified to fix the faulty tool. Instead, he attempted the
repairs himself, which resulted in the loss of a day's work. It should be
noted that when the screwshooter eventually was brought to the electrician, he
repaired it in 15 minutes.
The mechanics did not seek other useful work to do while the MIC was
attempting to repair the screwahooter. Both men acknowledged their duty to
find productive activities under these circumstances, and Mr. Michael acknowledged his responsibilit
employed.
We concur with the Carrier that cleaning the workshop and storing
bolts does not satisfy that obligation. The Carrier has persuasively demonstrated that there were a
could have and should have been done. The Claimants all had sufficient experience in this job classi
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According to the Carrier, based on other crew's experience it should
have taken roughly 30 minutes to install a single panel over the conveyor.
The Claimants partially installed only one panel between 8:15 A.M. and 3:00
P.M. Their only explanation for their lack of productivity was the faulty
screwshooter, which could have been fixed in 15 minutes. We must conclude
that the Claimants failed to perform their duties, as charged.
The Organization has suggested that the Carrier shares the blame, if
any, for poor productivity since the Supervisor waited until the end of the
shift to question the lack of progress on the assignment. We are not persuaded that the Carrier's fa
the Claimants in any measure.
As Mechanic-In-Charge, Mr. Michael must bear a greater degree of
blame for the crew's lack of productivity. It is appropriate that he be
disqualified as an MIC, since his actions demonstrate a lack of ability to
handle the added responsibility of that position. It also is appropriate that
he be suspended as a penalty for his own lack of productivity that day. We do
not view this discipline as an impermissible dual penalty.
However, the Carrier has failed to justify the imposition of a
lengthier suspension on Mr. Michael. While we understand and agree with the
briefer suspension for Mr. Forstrom due to a better prior disciplinary record,
the Carrier has offered no justification for the disparity in length of suspension between Mr. Micha
Carrier has not distinguished between their prior records. Therefore, we will
reduce Mr. Michael's suspension to ten (10) work days.
A W A R D
Claim sustained in accordance with the Findings.
NATIONAL RAILROAD
ADJUSTMENT BOARD
By Order of Third Division
Attest:
~Z~c4tx
ancy J. D e Executive Secretary
Dated at Chicago, Illinois, this 4th day of May 1989.