Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 28875
THIRD DIVISION Docket No. MW-29173
91-3-90-3-21
The Third Division consisted of the regular members and in
addition Referee James E. Mason when award was rendered.
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(Soo Line Railroad Company
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood that:
(1) The sixty (60) days of suspension imposed upon Section Laborer
J. A. Davis for alleged failure to properly protect his assignment was capricious, excessive and in
(2) The Claimant shall have his record cleared of the charge leveled
against him and he shall be compensated for all wage loss 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.
This is a discipline case involving an employee who had some 23 years
of seniority when, by letter dated June 2, 1988, he was informed that he was
. . . suspended from the service of the Soo Line Railroad Company, effective
immediately, as a result of your continued failure to protect your assignment
on a full time basis." This letter contained a listing of seven (7) dates
between January 7 and May 20, 1988, on which Claimant allegedly missed work
for a full day or a part of a day or left his work assignment early.
On this property, the Discipline Rule provides that an employee who
has been disciplined or dismissed shall be given a Hearing if one is requested
within certain stated time limit parameters. In this case, the request for a
Hearing was timely made and held. Claimant was present and represented during
the investigatory Hearing. He was permitted to testify on his own behalf and
was permitted to cross examine Carrier's witnesses. Following the completion
Form 1 Award No. 28875
Page 2 Docket No. MW-29173
91-3-90-3-21
of the investigatory Hearing, Claimant was informed that he was found by Carrier to be at fault
was assessed a sixty (60) day actual suspension from service. Appeals from
the suspension were perfected on Claimant's behalf and progressed through the
usual manner of grievance handling on the property which included a formal
appeal Hearing at which question and answer testimony was taken. Claimant was
present and represented throughout the appeal Hearing. Failing to reach a
satisfactory resolution of the grievance during the usual on-property handling, the claim has come t
The Organization, in their presentation to the Board, has raised
three (3) primary contentions, namely: that the Claimant did not receive a
fair and impartial Hearing; that the Carrier did not prove the charge as made
against the Claimant; and, that the discipline as assessed was arbitrary,
capricious, improper, excessive and unwarranted. The Carrier, on the other
hand, contended that the Hearing was fair and impartial; that the evidence
adduced at the Hearing clearly supported a finding of responsibility; and,
that the Carrier did not act in an arbitrary or capricious manner.
We have read and studied the transcripts of both Hearings which were
held. We have read and studied the Ex-Parte Submissions which each party has
presented to this Board. We have reviewed the Awards which each party has
presented in support of their respective positions as well as all arguments.
The first issue which we will address is the contention that the investigatory Hearing was alleg
This contention by the Organization goes primarily to the conduct of the Hearing Officer in his ques
our Board. In railroad discipline cases there is a significant difference
between the conduct of the on-property hearing as compared with formal court
proceedings. The purpose of the investigatory hearing is to get at the truth
and to discover all of the facts about the matter under investigation so that
a just decision can be made by the trier of facts and that a clear, complete
record will be available for review by appellate tribunals such as our Board.
More often than not, the hearing officer comes to the hearing with some knowledge of the subject und
prejudicial. Quite often, as in this case, the hearing officer engages in
persistent questioning in an attempt to adduce testimony. This too, in and of
itself, is not evidence of prejudice. Because the hearing officer has the
responsibility of developing the record which forms the basis of the discipline assessed as well as
officer must be given certain latitude in his/her conduct of the hearing. In
this case, the hearing officer was extremely zealous in his attempts to develop the record and stret
not believe, however, that he exceeded his authority. While the record is
repetitious in many respects, it is reasonably understandable. While the
Hearing Officer may have been unnecessarily exacting in his questioning in
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Page 3 Docket No. MW-29173
91-3-90-3-21
certain areas, his tactics, while not condoned, are not so egregious as to
have denied Claimant the right to a "fair and impartial" hearing as that term
is applied in railroad discipline proceedings.
When we examine the stated reason for the assessment of the sixty
(60) day suspension, we find that Claimant did, in fact, fail to protect his
assignment on a full time basis. That was the basis for the discipline. He
was not disciplined because of absence without permission. He was not disciplined because of deserti
disciplined because of the "continued failure to protect your (his) assignment
on a full time basis." The record contains substantial evidence to support
this conclusion.
The employer/employee relationship demands that employees diligently
perform the work for which they are hired. They are expected to fulfill their
obligation to work on the days assigned. When they fail in this responsibility, they become part-tim
with part-time employees. The right to discipline employees for excessive or
repeated absences, even when they are due to illness, has been recognized and
accepted by Referees. (See Award No. 117 Public Law Board 1790 and Third
Division Award 26187). In fact, this same Claimant, in Third Division Award
26576, was put on notice that even though his ". . . requests for early leave
were made with the best intentions, the fact remains that the results produced
evaded rather than conformed to policy made sufficiently clear by the Roadmaster." The full text of
part of this decision.
In this case, based upon the substantial evidence as found in the
Hearing transcript, it is our conclusion that Claimant is guilty of continued
failure to protect his assignment on a full time basis.
That brings us to the third part of this dispute. Was the assessment
of a sixty (60) day suspension for this proven dereliction "arbitrary, capricious, improper, excessi
The record of this Board is replete with authority for the conclusion
that, as an appellate tribunal, we may not, in normal circumstances, interfere
with the Carrier's right to set the measure of discipline for proven offenses
unless it can be shown that the discipline was imposed arbitrarily, without
just cause or in bad faith. Claimant is a long-term employee. He is also a
repeat offender. Discipline is a serious matter. To be effective, it should
be progressive, it should act as a deterrent to others and its purpose should
be to train and rehabilitate - not to be solely punitive. Claimant's record
shows that he has not yet taken seriously these noble precepts. Third Division Award 26576, cited su
derelictions as are found in this case. It can only be hoped that this sixty
(60) day suspension will carry a stronger message and have more of a salutary
effect than did the four (4) working day suspension decided upon by Award
26576.
Form 1 Award
No.
28875
Page 4 Docket
No.
MW-29173
91-3-90-3-21
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
.7
Attest: ~tGU/Q·yJ~,
-Nancy J... er - Executive Secretary
Dated at Chicago, Illinois, this 30th day of July 1991.