Form 1
NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 33046
Docket No. MW-33514
99-3-96-3-990
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:
(Union Pacific Railroad Company
STATEMENT OF CLAIM:
"Claim of the System Committee of the Brotherhood that:
(1) The Level 2 Discipline assessed Track Inspector J. A. Henson, Jr.
for his alleged failure to properly inspect track under his
jurisdiction on June 6 and 7, 1995 was without just and sufficient
cause, unfair, discriminatory and excessive punishment (System File
D-233/960014).
(2) Track Inspector J. A. Henson shall now have his record cleared of
the charges related to the June 20, 1995 letter of charges and
hearing held on June 29, 1995."
FINDINGS:
The Third Division of the Adjustment Board, upon the whole record and all the
evidence, finds 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.
This Division of the Adjustment Board has jurisdiction over the dispute involved
herein.
Parties to said dispute were given due notice of hearing thereon.
Form 1 Award No. 33046
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J. A. Henson (Claimant) has established seniority in the Track Subdepartment
as a Sectionman, Track Foreman and Group 7 Track Inspector. At the time of this
dispute, the Claimant was assigned as a Track Inspector and was working as such under
the supervision of Manager Track Maintenance J. Asmussen.
On June 20, 1995, the Carrier sent the Claimant the following directive:
"Please report to the Office of the Manager of Track Programs,
Nampa, Idaho, on Thursday, June 29,1995, at 1 p.m. for investigation and
hearing on charges to develop the facts and place responsibility, if any, on
charges that you allegedly failed to properly inspect track under your
jurisdiction on June 8 and 9, 1995. Specific to, but not limited to, loose,
missing and rattled out bolts, indicating a possible violation of Rules 1.1,
1.13, 46.1, 1.6(2) and Chief Engineering Instructions Bulletin 91-002-G,
Pages 7 and 8 of 22."
The Investigation was held as scheduled. The Claimant subsequently received a
letter informing him that he had been found guilty of the charges against him, and as a
result, his record was assessed Level Two (2) discipline, for which he was ". . . required
to attend one (1) day of alternative assignment with pay to develop a Corrective Action
Plan, to be scheduled for a later date."
The Organization protested the discipline premised upon the following:
1. The Carrier deprived the Claimant of his contractual right to due
process as contemplated by the Agreement. The hearing was a
"gross miscarriage" of due process as defined within Rule 48, and
the instant claim is sustainable on such basis alone.
2. The Carrier failed to meet its burden of proving the charges leveled
against the Claimant prior to the hearing and during the hearing.
He did not violate the Carrier rules for which he was charged, i.e.,
because having loose, missing and rattled out bolts was a "common
occurrence."
low
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Award No. 33046
Docket No. MW-33514
99-3-96-3-990
3. The discipline assessed the Claimant was arbitrary, capricious,
unwarranted and in violation
of
the Agreement. The instant claim
should be allowed.
1n denying the claim, Carrier Manager Engineering Resources asserted that:
"There was an error on the date
of
charges and was noticed on the date
of
the investigation, so Mr. Larsen and Mr. Henson were advised
of
the
typographical error and given several opportunities for recess or
postponement
of
the investigation to prepare themselves for the typo error.
Mr. Larsen refused any time or postponement so we continued with the
investigation.
I held investigation and listened to all testimony offered by Manager
Asmussen and Track Inspector Henson and sufficient avenues to obtain
bolts and Claimant had used bolts with him on his inspections but failed to
exercise those avenues and install bolts to Union Pacific standards. Mr.
Henson was relying on new bolts to correct exceptions while bolts were on
order and had not been received. Mr. Henson is a veteran at this and had
been counseled before about his performance and, in particular, about
excessive bolts missing. It is my contention that charges be sustained, and
Mr. Henson held accountable for his non-compliance
of
our Company
standards."
At the outset, the Organization alleges that the Carrier violated Rule 48(c)
of
the
Agreement which provides, in pertinent part, that:
"Prior to the hearing, the employe alleged to be at fault shall be apprised
in writing
of
the precise nature
of
the charges) sufficiently in advance
of
the time set for the hearing . . . ."
Specifically, the Organization refers to the Carrier's original Notice
of
Formal
Investigation in which the charge dates were listed as June 8 and 9, 1995, rather than
June 6 and 7,1995. According to the Organization, the Claimant's entire defense rested
upon the fact that he was on vacation on June 8 and 9, 1995, and therefore could not be
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99-3-96-3-990
held accountable for the "loose, missing and rattled out bolts" on those specific dates.
However, prior to the onset
of
the Investigation the Hearing Officer offered the
Organization additional time to prepare the Claimant's defense due specifically to the
insertion
of
the dates
of
June 8 and 9 rather than June 6 and 7, 1995, an offer which the
Organization repeatedly refused. We cannot find that the Carrier's typographical error
constitutes a fatal procedural flaw. Any arguable claim
of
disadvantage was waived
when the Claimant and his Representative declined repeated offers
of
adjournment and
proceeded with the scheduled Investigation.
Turning to the merits
of
the dispute, on June 8 and 9, 1995, Manager Track
Maintenance Asmussen conducted an inspection
of
the area
of
track for which Track
Inspector Henson was assigned responsibility. During the course of the inspection,
Manager Asmussen found an "inordinate and unacceptable" number
of
bolts missing
from the joints. At the outset, the Claimant contended that "on several occasions" he
had requested new bolts which he deemed necessary to perform the maintenance at
issue. Manager Asmussen did not dispute the Claimant's assertion, but stated that he
had instructed Mr. Henson to use "readily available" second hand bolts which the
Manager deemed sufficient in the interim.
disputed:
In that connection, the following testimony from Manager Asmussen is not
"What I found on the inspection was numerous bolts that had rattled out
and had been out for quite some time. There was no shiny marks or marks
of
recent movement
of
the nut or the washer or anything else. Most
of
the
bolts, which I reused, were rusted and just laying beside the joints. Some
of
the nuts were filled with dry mud that I had to actually knock out before
I could start the threads on the bolts, indicating they had been there for
quite some time.
On the first day, there was a total
of
24 defects.
Of
the 24, 12
of
them were
simply rattled out bolts that I was able to put back in myself with no
problem. On the second day, there was a total of 21 defects. Of the 21, 14
were simply rattled out bolts that just simply slid back in by hand and
tightened back up."
J
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Award No. 33046
Docket No. MW-33514
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Upon further questioning, Manager Asmussen admitted that bolts are a "continuous
problem", but went on to state that: "The alarming part to me was the amount of bolts
out that appeared to have been out for quite some time."
Based on Manager Asmussen's undisputed testimony, we conclude that the
Carrier sustained its burden of proof that the Claimant was negligent in performing his
assigned duties on at least two dates in June 1995. The Claimant's argument that
unavailability of bolts prevented him from performing the repairs, is effectively refuted
by the facts. Manager Asmussen testified that, he was able to "simply slide the bolts
back in by hand and tighten them up."
Finally, with respect to the quantum of discipline assessed, there is no dispute that
the Claimant received counseling on at least one prior occasion regarding the amount
of bolts missing on his territory. In that connection, Manager Asmussen testified:
"On the last inspection trip I made, there were many, many bolts noted
out. On that trip, there was two Federal Railroad Administration
inspectors, myself, and a lady from, I believe, the Idaho PUC. The Federal
Inspector made `several' comments about the excessive number of bolts
out. I spoke with Mr. Henson to let him know how the inspection went,
and told him that the Federal inspectors were especially concerned with
the amount of bolts found out."
Therefore, we do not find the Carrier's assessment of Level 2 discipline to be
arbitrary, capricious or otherwise inappropriate in all of the circumstances. Based on
all of the foregoing, this claim is denied.
AWARD
Claim denied.
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Award No. 33046
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Docket No. MW-33514
99-3-96-3-990
ORDER
This Board, after consideration of the dispute identified above, hereby orders that
an award favorable to the Claimants) not be made.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Dated at Chicago, Illinois, this 24th day of February 1999.