Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 32016
Docket No. MW-32591
97-3-95-3-529
The Third Division consisted
of
the regular members and in addition Referee
Nancy F. Murphy when award was rendered.
(Brotherhood
of
Maintenance
of
Way Employes
PARTIES TO DISPUTE:
(Burlington Northern Railroad
STATEMENT OF CLAIA1:
"Claim
of
the System Committee of the Brotherhood that:
(1) The discipline leotry of censure and five (5) day suspension] imposed
upon Truck Driver S. D. Jones for alleged, `... violation of General
Safety Rule 1 in General Rules, Form 15001, for your unsafe driving
of Truck No. 2606 in the Denver, Colorado, area at or about July 1
until July 22, 1994 ....' was unwarranted, without just and sufficient
cause, on the basis of unproven charges and in violation of the
Agreement (System File C-94-S090-4/MWA 94-12-02AA).
(2) As a consequence of the violation referred to in Part (1) above, the
Claimant's record shall be cleared of the charges 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, rinds that:
The carrier or carriers and the employee or employees involved in this dispute are
respectively carrier and employee within the meaning of the Railway Labor Act, as
approved June 21, 1934.
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This Division of the Adjustment Board has jurisdiction over the dispute involved
herein.
Parties to said dispute were given due notice of hearing thereon.
S. D. Jones, seniority date September 18, 1978, is employed by Carrier as a Truck
Driver. Claimant was working in that capacity, under the supervision of Section Gang
Foreman A. Weaver and Roadmaster M. Theret when this dispute arose.
During the weeks prior to July 26, 1994, Foreman Weaver had approached
Roadmaster Theret with concerns about Claimant's "unsafe" driving habits. The
Roadmaster cautioned Foreman Weaver, that he could not "just say that someone is
unsafe" and that it would be necessary to "be more specific with facts and dates" should
the situation persist In the meantime, however, the Roadmaster instructed the Foreman
to "talk" to Mr. Jones, and "explain to him how to drive in a safe manner."
On July 26 or 27, Roadmaster Theret received the following documentation:
"Re: Stan Jones
Wed. July 13th 2 p.m.
Ran red light at Park ave west and Globeville Rd. When I
asked him about it, he said: `Don't worry, Weaver, there's
nobody coming.'
Thurs. July 14th, 6:30 p.m.
When hy-railing (sic) in bound from S. Denver to town,
entered ring at Bayaud w/o slowing down or looking to the
right. When I asked him about it, he said: `That's a one way
st. & I can see no one is coming.' When I replied that it was
a two way st., he said: `Oh, I thought it was a one way.'
Form 1 Award
No.
32016
Page 3 Docket
No.
iVIW-32591
97-3-95-3-529
Thurs. July 14th, 12:35 p.m.
Instructed Stan to pull up neat to a scrap tie pile to unload
some ties from truck. In doing so, ran over two at the edge of
the pile. When asked about it, he replied: 'I guess I didn't see
them.'
He repeatedly puts truck into reverse at stoplights, if not for
back-up alarm, would probably hit several cars by now.
Narrowly missed on one occasion before he realized what the
alarm was. When asked about it, he said: `The gears are
really close together'. No one else that has driven this truck
for me has had this problem.
He cannot drive the truck - unable to smoothly shift gears
under any circumstances.
Fri. July 22nd., 2:30 p.m.
Backed into a 5ft high stack of panels alongside the outbound
main at Walnut. When asked about it, replied: `Don't worry,
I didn't hit them very hard.'"
Regarding the latter incident, Foreman Weaver went on to state:
"There was only minor damage to the truck which I was able
to repair. There was no one guiding him back. I will not get
close to the truck while Stan is driving as I feel he is to (sic)
dangerous, and Chuck has given up on trying to direct him
since as Chuck says: ' He doesn't pay attention or listen to you
anyway so why bother?..."
On August 2,1994, Claimant was instructed to attend an Investigation scheduled
for August 10, 1994, to:
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"Ascertain the facts and determine your responsibility, if any, in connection
with your alleged unsafe driving, while assigned as a truck driver, at or
about July 1 through July 22, as found out by this office on July 26, 1994."
On August 7, 1994, the Local Chairman sent the following correspondence to
Roadmaster Underwood, concerning Claimant's Investigation:
"After looking into this matter it has been brought to my
attention that Mr. Weaver refused to ride in a vehicle driven
by Mr. Jones beginning on July 18, 1994 and has not ridden
with Mr. Jones since then. Mr. Weaver went to the Carrier
with the allegations described in your August 2, 1994 letter to
Mr. Jones (notice to attend investigation) on July 18, 1994,
and several times between July 1 and July 18. It is hard for
me to believe that a section foreman could refuse to ride with
his truck driver and the carrier not be aware of it for a full
workweek and the following Monday.
The time limits in rule 40 of the Agreement between
Burlington Northern Railroad Company and its Employees
represented by the Brotherhood of Maintenance of Way
Employees has been violated. Mr. Jones hearing is not
scheduled to be held within 15 days from the time the
information was known to a carrier officer.
We contend that due process rights under the agreement has
not been afforded Mr. Jones and the charges be dropped
entirely.
If the (sic) is going to be held I must ask for a postponement
until the week of August 15 through 19 because I will be
unable to attend before then."
The Investigation was duly postponed and held on August 16,1994. At the outset,
the Organization again raised ill timeliness objection, however the Investigation was
convened Foreman Weaver and Roadmaster 17teret testified on behalf of Carrier, while
Mr. Jones' co-workers, Truck Driver Jennings and Assistant Foreman Norman testified
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at Claimant's behest. Neither of the witnesses was able to corroborate the incidents of
alleged "unsafe driving", described by Foreman Weaver, prior to July 22, 1994. It is
noted, however, that Mr. Jennings candidly admitted partial responsibility for the July
22 incident collision with the stack of panels. Specifically, Mr. Jennings conceded that
Claimant had requested his help in directing the back-up movement, but because it was
"too hot", Mr. Jennings instead sought shelter under a nearby overpass, leaving Claimant
to back up without direction.
On September 1, 1994, Carrier notified Claimant that as a result of "violating
General Safety Rule 1", an entry of censure and a live day suspension from service, had
been placed in his personal record.
The Organization appealed the decision, maintaining that the assessed discipline
"clearly" violated the Agreement. In further support of Carrier's alleged violation of
Rule 40, the Organization pointed to Mr. Weaver's testimony in which he stated that he
"thought" he spoke to Roadmaster Theret regarding Claimant's "unsafe" driving on July
19, 1994. However, when questioned as to whether that was the first occasion upon which
he had spoken to the Roadmaster regarding Claimant's driving habits, Foreman Weaver
stated that he had first raised the subject with the Roadmaster "about 3 1\2 years ago."
Finally, noting the time limit exception provided for in Section B of Rule 40, the General
Chairman stated that the case in dispute "certainly" did not constitute a personal conduct
violation.
Regarding the merits of the dispute, Carrier denied the claim, maintaining that
Claimant "continually failed" to safely execute the duties of his position as truck driver
between July 1 and July 22,1994. Carrier further stated that the discipline assessed was
"appropriate and well measured."
Referring to the issue of timeliness, Carrier maintained that it became "officially
aware" of Mr. Jones "unacceptable driving habit" when Roadmaster Tlheret received
Mr. Weaver's letter dated July 26, 1994. Prior to that date, any interchange between
Foreman Weaver and Roadmaster Tlheret was "idle conversation." It was only after
"careful consideration" Carrier determined that an investigation was necessary, and,
accordingly, Carrier notified Claimant by letter dated August 6, 1994, "seven (7) days
after the date of first knowledge."
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The Organization's premise that Carrier exceeded the requisite time limits is well
founded on this record. The time limits for scheduling the investigation into the alleged
incidents of July 13 and 1-t, began to run on July 19, 1994, when Foreman Weaver
reported those occurrences to Roadmaster Tlreret. The hearing scheduled for August 10,
1994, fell clearly outside Rule 40 time limits. With respect to the July 13 and 14 events,
and that lack of timeliness. cannot be cured by the device of tagging those incidents onto
the July 22, 1994 allegation which first was reported to Roadmaster Theret on July 26,
1994. Therefore, the hearing of August 10 was untimely and invalid with respect to July
13 and 14, 1994, and discipline based thereon must be dismissed.
With the respect to July 22. 1994 incident, Claimant must be considered partially
culpable for backing into and damaging the panels. However, his culpability is mitigated
by the contributory negligence of Mr. Jennings. Based upon all of the foregoing, we find
that the discipline assessed by Carrier must be reduced from a suspension without pay,
to a Letter of Reprimand, referencing solely the incident of July 22, 1994, and deleting
all references to alleged "unsafe driving" prior to that date.
AWARD
Claim sustained in accordance with the Findings.
ORDE
T1is Board, after consideration of the dispute identified above, hereby orders that
an award favorable to the Claimant(s) be made. The Carrier is ordered to make the
Award effective on or before 30 days following the postmark date the Award is
transmitted to the parties.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Dated at Chicago, Illinois, this 6th day of May 1997.