NATIONAL RAILROAD ADJUSTMENT BOARD
Form 1 THIRD DIVISION Award No. 29583
Docket No. MW-30158
93-3-91-3-597
The Third Division consisted of the regular members and in
addition Referee Barry E. Simon when award was rendered.
(Brotherhood of Maintenance
(of Way Employes
PARTIES TO DISPUTE:
(CSX Transportation, Inc. (former
(Seaboard System Railroad)
STATEMENT OF CLAIM:
"Claim of the System Committee of the Brotherhood that:
(1) The discipline (letter of censure) imposed upon
Foreman R. S. Grissette for alleged violation of CSX
Transportation Safety Rule No. 110 and Engineering
Department Maintenance Rulebook Rule No. 2106 on June 4,
1990 was without just and sufficient cause and in
violation of the Agreement (System File 90-84/12(90-919)
SSY].
(2) The letter of censure (dated June 18, 1990) referred
to in Part (1) above shall be removed from the Claimant's
personal record."
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 employe 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 June 18, 1990, Claimant was sent the following letter from
the Assistant Division Engineer:
Form 1 Award No. 29583
Page 2 Docket No. MW-30158
93-3-91-3-597
"This has reference to an incident that occurred on
June 4th, 1990, near Dothan, Alabama, whereby you were
observed wearing a neck chain while working on or near
mechanized equipment. In addition, it was also noted
that an employee under your direct supervision was also
wearing a neck chain while working under similar
circumstances.
As you should be aware, this is a direct violation
of CSX Transportation Safety Rule No. 110, which states:
'Employees are prohibited from wearing watch chains, key
chains, necklaces, bracelets or other jewelry when
working around equipment or machinery in which such
articles may become entangled.'
This is also a violation on your behalf of the
Engineering Department Maintenance Rulebook, specifically
Rule No. 2106, which states: 'Track Foreman will see
that the members of their work force are familiar with
their duties and will instruct them as necessary in the
proper observation of the rules and safe performance of
their work. Neglect or misconduct of the men under their
supervision shall promptly be reported to the
Roadmaster.'
This is to advise that you have been cited for 2
efficiency test violations in connection with the above
referenced rules. At this time, I encourage you to take
the leadership role when supervising a group of
employees. We must all set the proper example if we
expect those under our supervision to comply with all
applicable operating and Safety Rules. At this time, you
must be committed to be a positive leader for those under
your supervision which involves adherence to the
Operating and Safety Rules.
Should you have any questions relative to the above,
please advise."
A copy of this letter was sent by Carrier to the General
Chairman. A claim was subsequently filed, alleging this letter
constituted a letter of censure and was in violation of Rule 39 of
the Agreement, which provides, in part, that
"Whenever charges are preferred against an employee,
they will be filed within ten days of the date the
violation becomes known to Management."
Form 1 Award No. 29583
Page 3 Docket No. MW-30158
93-3-91-3-597
Carrier has denied the claim, asserting the letter was a
cautionary statement, and did not constitute disciplinary action
pursuant to Rule 39. The Carrier argues this Board has recognized
the right of a carrier to issue such letters as a means of
impressing upon its employees the importance of compliance with
Safety and other Rules.
Carrier is correct that cautionary letters may be issued
without resort to the discipline process. Third Division Award
24953 and Award 26 of Public Law Board No. 3794, both involving
this Organization and the Seaboard Coast Line, a predecessor
company of this Carrier, allowed such letters on the basis they
were not disciplinary, but, rather, cautioned the employees to
avoid certain conduct in the future.
The issue, however, is one of substance rather than form.
Merely calling this a cautionary letter does not make it so. We
must examine the content of the letter to determine whether it is
in the nature of counseling or in the nature of discipline.
(Second Division Award 11249). In Second Division Award 8062, the
Board held:
"We fully support carrier's position that warning
letters are not disciplinary and should not be viewed as
such. A problem arises, however, in the way warning
letters may be worded. Care must be taken not to
indicate that the Employee is guilty of misconduct that
would practically assure that he would be considered a
second offender if brought up on charges for a similar
offense in the future. We have decided in a recent case
on this issue (Award No. 7588, Second Division) that
letters containing accusations of guilt for a specific
act should be considered disciplinary in nature and
subject to investigation and a full and impartial hearing
before being placed in an Employee's file."
In Third Division Award 28920, the Board, after reciting the
above quoted language, wrote:
"In this instance, the Board finds that the Carrier
has clearly gone beyond 'instruction' to the Claimant,
exceeding the usual advice as to future conduct. Here,
as in traditional disciplinary matters, the Claimant was
advised that he was in 'violation' of specific Rules and
was told that any 'further violation may result in
disciplinary action.' This is qualitatively different
from a 'warning' or a 'counseling."'
Form 1 Award No. 29583
Page 4 Docket No. MW-30158
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Viewing the letter in this context, we must find that Claimant
was determined by Carrier to have violated the two Rules cited.
Such is the explicit language used by the Assistant Division
Engineer. This is confirmed by the letter of the Division Engineer
who, in denying the initial claim, wrote:
"In this instance, the letter issued to Mr. Grissett
was merely a cautionary statement issued to inform Mr.
Grissett that he, in fact, had violated specific rules
dealing with his safety and the employees under his
direction."
The letter in question has obviously crossed the line from
being cautionary to being disciplinary. As such, it was issued in
violation of Rule 39, which required Carrier to take such action
within ten days of the violation. As the Agreement was violated,
we shall sustain the claim.
A W A R D
Claim sustained.
NATIONAL RAILROAD ADJUSTMENT HOARD
By Order of Third Division
Attest:
Nancy J. - Executive Secretary
Dated at Chicago, Illinois, this 9th day of March 1993.