Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 35920
Docket No. MW-35765
02-3-99-3-746
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) TheLevel4disciplineassessedAssistantForemanJ.T.Gonzalezfor
alleged violation ofUnion Pacific Rules 1.15 and 1.13 while working
on Gang 8566 on June 29, 1998 was without just and sufficient
cause, arbitrary, capricious and in violation of the Agreement
(System File W-9848-158/1154845).
(2) As a consequence of the violation referred to in Part (1) above, Mr.
J.T. Gonzalez' record shall now be cleared of said discipline and he
shall be paid for all time lost."
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. 35920
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Claimant J. T. Gonzalez holds seniority as an Assistant Foreman, and was
regularly assigned as such to Tie Gang 8566, under the direct supervision of Foreman
R. Olaiz and Engineering Tech 2 L. Brown when this dispute arose.
On July 6, 1998, the Carrier notified the Claimant of the following:
"Please report to Union Pacific Railroad Company on July 14 at 1:30 p.m.,
for investigation and hearing on charges to develop the facts and place
responsibility, if any, that while working as a System Asst. Foreman on
Gang 8566, June 29, 1998, in the vicinity of Lake Point, Utah, you
allegedly failed to comply with instructions and also absented yourself
from your duties without proper authority. This is in possible violation of
Union Pacific Rules 1.13 and 1.15, effective April 10, 1994."
Specifically, the Carrier asserted that the Claimant failed to comply with an
instruction from Supervisor Brown to provide a report regarding the status of an
inoperable rail lifter machine. The Carrier further asserts that, on that same day, the
Claimant absented himself from the job site without proper authority.
As a result of the Investigation, Engineering Supervisor Martinez apprised the
Claimant that:
"I have carefully reviewed and have considered all the testimony contained
in the hearing transcript. I have found more than a substantial degree of
evidence was presented to warrant sustaining all charges brought against
you for your violation of Union Pacific Rules 1.15 and 1.13. This is a Level
Two violation.
According to the UPGRADE Discipline table found on page eight of the
UPGRADE Policy, your past Discipline assessment of Level 3, plus the
current discipline assessment of a Level 2, now requires the assessment of
a Level 4. Therefore, this is to advise you that your personal record will
now be assessed with a Level 4.
Level 4 requires thirty (30) days off work without pay and you must pass
necessary annual rules in order to return to work. A Corrective Action
Plan must be developed upon return to work."
Form 1 Award No. 35920
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02-3-99-3-746
On August 24,1998, the Organization submitted a claim noting that the Claimant
was "new" to the gang and therefore, unfamiliar with established reporting procedures.
With respect to Rule 1.15, the Organization asserted that the Claimant did not absent
himself without authority, but rather "assumed" he had completed his assignment.
Finally, the General Chairman noted that even if the Claimant had wanted to contact
his Supervisor, he could not have done so because his radio was inoperable.
For its part, the Carrier noted that although the Claimant was "specifically
instructed" to keep Supervisor Brown informed of "any and all" mechanical problems,
he did not do so. Nor did the Claimant provide his immediate Supervisor, Mr. Olaiz,
with a mechanical update prior to departing the property. The Carrier further asserted
that the Claimant violated Rule 1.15 of the Agreement when he left the job site without
being released from duty. In that connection, the Carrier asserts that the Claimant used
the dead radio battery as an "excuse," and could have contacted the Carrier, via the bus
radio, as he was escorting the Laborers to the tie up location.
The Rules for which the Claimant was cited provide that:
"RULE 1.13 REPORTING AND COMPLYING WITH
INSTRUCTIONS:
Employees will report to and comply with instructions from supervisors
who have the proper jurisdiction. Employees will comply with instructions
issued by managers of various departments when the instructions apply to
their duties.
RULE 1.15 - DUTY - REPORTING OR ABSENCE:
Employees must report for duty at the designated time and place with the
necessary equipment to perform their duties. They must spend their time
on duty working only for the railroad. Employees must not leave their
assignment, exchange duties, or allow others to fill their assignment
without proper authority."
Although the Organization asserts that the Claimant was "off of the Southern
Pacific" and did not know the Carrier's "practices," there is no dispute that on June 29,
1998 the Claimant was given a direct and explicit instruction to keep his Supervisor(s)
Form 1 Award No. 35920
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02-3-99-3-746
apprised
of
"any and all" mechanical problems throughout the duration
of
his shift.
According to Supervisor Brown's undisputed testimony, the following exchange
occurred on the morning
of
June 29, 1998:
"Q. You mention that Claimant failed to follow instructions. What were
those instructions?
A. I instructed Mr. Gonzalez to provide me with the equipment
number, how long it was down, what was wrong with it. And the
other equipment that went down that day, so we could put it down
on our production report, to show our train delays, or mechanic
problems that we are having out with the gang. And he failed to do
that.
Q. So, you personally instructed Mr. Gonzalez to turn in a report to
you?
A. I personally talked to him, instructed him to do that, why it was
important. And watched him pull out his job briefing book and
write down some information."
In that connection, the Hearing Officer questioned the Claimant's immediate
Supervisor, Foreman Olaiz as follows:
"Q. Was Mr. Gonzalez instructed to turn in his reports?
A. Yes, he was.
Q. You stated earlier that you couldn't recall if you personally told
him, basically, the gang's working procedure. With reference to
reporting downed equipment, or anything associated with the
production reports?
A. No, I didn't bring it up in the job briefing. But during the day, you
know, every time a machine goes down, I always remind my
assistants to make sure they write it down, so they can report it to
me at the end
of
the day."
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For his part, the Claimant admitted the following:
"Q. Did you get instructions from anybody not to turn in your reports?
A. No.
Q. Did Mr. Brown give you instructions to turn in your report to him?
A. He told me to make sure to tell your foreman what happened to the
machine.
Q. If one of your supervisors tells you to do something, are you
required to do what he tells you?
A. Yeah."
These unrefuted statements prove that the Claimant was clearly instructed to
report certain information to both Supervisor Brown and Foreman Olaiz. Further, the
Claimant wrote down the information as it was being conveyed to him, implying that he
understood the direct and absolute instructions. There is no question then, that the
Claimant's refusal or failure to do as he had been directed clearly violated Rule 1.13,
for which he was cited.
With regard to Rule 1.15, the Carrier asserts that the Claimant was not relieved
of duty prior to leaving the property. The Organization maintains that the Claimant's
radio battery was dead, and he could not check in with his Supervisor for permission to
leave. However, according to Foreman Olaiz' undisputed testimony, there was a "big"
radio with capability to talk "for miles and miles" on the bus the Claimant rode with the
Laborers, yet the Claimant did not make use of same to request permission to leave for
the day. In that connection, the Claimant admitted that he was "unsure" if he was to be
released after he left the work site. Specifically, the Claimant admitted that:
"Q. Did you make any attempt to call the foreman on the radio?
A. No.
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Q. Did anybody say, you're done for the day, you can go home now?
Did anybody tell you that?
A. No."
In discipline cases such as this, the Carrier bears the burden of proving the
misconduct for which the employee was disciplined. The quantum of proof necessary to
prove the charge is "substantial evidence." The Claimant was clearly instructed to
provide required reports. He did not do so. Nor did he garner permission from his
supervisor or other proper authority to leave the work area prior to the end of normal
work hours. In the circumstances, the discipline assessed was reasonable and
warranted. Therefore, this claim must be denied.
AWARD
Claim denied.
ORDER
This Board, after consideration of the dispute identified above, hereby orders that
an Award favorable to the Claimant(s) not be made.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Dated at Chicago, Illinois, this 22nd day of January, 2002.