Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 37446
Docket No. SG-37281
05-3-02-3-287
The Third Division consisted of the regular members and in addition Referee
Robert Perkovich when award was rendered.
(Brotherhood of Railroad Signalmen
PARTIES TO DISPUTE:
(Kansas City Southern Railroad
STATEMENT OF CLAIM:
"Claim on behalf of the General Committee of the Brotherhood of
Railroad Signalmen on the Kanss City Southern (KCS):
Claim on behalf of R. H. Ware, Jr., for removal of the discipline
issued as a result of an investigation held on October 11, 2000, and
any reference to this matter removed from his personal record,
account Carrier violated the current Signalmen's Agreement,
particularly Rule 47, when it disciplined the Claimant without
meeting its burden of proving the charges. Carrier File No.
K06015450. General Chairman's File No. 004247. BRS File Case
No. 11901-KCS."
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.
Form 1 Award No. 37446
Page 2 Docket No. SG-37281
05-3-02-3-287
Parties to said dispute were given due notice of hearing thereon.
In 1999, the Claimant was convicted of driving while under the influence. His
driver's license was subsequently suspended. He did not report the suspension of
his license to the Carrier and continued to work his regular assignment with
another employee driving in his place. His license was again suspended for a second
DWI conviction. After an Investigation, he was disqualified from his position
because he was not properly licensed. The disqualification was upheld by a decision
of the Board in Third Division Award 36400.
At the Investigation for the second license suspension, the Carrier learned of
the first DWI conviction. After a second Investigation, the Carrier issued the
Claimant a 30-day deferred suspension for the first license suspension. The
deferred suspension would not be served so long as the Claimant did not commit
another Rule violation within 180 days of notice of the deferred suspension. The
record reflects that the Claimant was not compelled to serve the deferred suspension
at issue in this claim.
The Organization contends that the 30-day deferred suspension must be set
aside because the Carrier ". . . had already assessed discipline for the matter in
dispute here (not reporting the 1998 DWI)." However, a close reading of our
decision in Award 36400 clearly shows that the issue faced in that claim was the
Claimant's disqualification for failing to possess a valid driver's license after his
second conviction. Thus, the deferred suspension at issue herein is for a separate
and discrete offense, i.e., the Claimant's failure to report the first conviction. The
deferred suspension and associated Investigation, therefore, do not constitute double
jeopardy. The claim is denied.
AWARD
Claim denied.
Form 1 Award No. 37446
Page 3 Docket No. SG-37281
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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 March, 2005.