Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
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-
The Claimant was hired in dune 1996 and prior to his dismissal, he was assigned as a Machine Operator in the Maintenance of Way Department on Rail Production Gang 10. On March 17, 2006, the Claimant was notified to attend an Investigation into his alleged inappropriate behavior and conduct on March 11, 2006, at a BNSF provided lodging facility when he allegedly "exposed [himself], displayed pornographic materials, [was] intoxicated in a public area, and disruptive to various motel guests" from approximately 8:30 P.M. to approximately 11:30 P.M. After an Investigation held on July 27, 2006, the Carrier determined that he was guilty of the inappropriate behavior and conduct charged and dismissed him from employment for violation of Maintenance of Way Operating Rules 1.6, Conduct, 1.9, Respect of Company Property, and Engineering Instructions, 21.2, Showing Proper Conduct"
The Organization objects that the Claimant was denied a fair and impartial Hearing, that the Carrier failed to meet its burden of proof, and that the decision to dismiss the Claimant was arbitrary, capricious, excessive and in violation of the Agreement.
The Organization cites several aspects of the Hearing that were not fair and impartial. First, it contends that the Carrier violated the time limits of Rule 40 A, because the Assistant Roadmaster, and therefore the Carrier, became aware of the Claimant's misconduct on March 11 when he checked into the same motel. However, the Assistant Roadmaster testified that while he encountered the Claimant that evening, and knew that he was drunk, the Claimant's behavior in his presence was not objectionable, and no one made him aware of any objectionable conduct at that time. Instead, the record indicates that the Assistant Roadmaster became aware of the March 11 events on March 13, 2006 at about 8:30 P.M., when he received complaints about the Claimant's conduct. After interviewing employees and the Claimant; the
Form I Award No.
39382Assistant Roadmaster removed the Claimant from the property on March 14. The Carrier advised the Claimant on March 14 of the Hearing scheduled for March 27,14 days after the Assistant Roadmaster first became aware of the problem. In this way the Carrier satisfied the Rule 40A requirement that the Investigation be scheduled to be held not later than 15 days from the date the information is obtained by a Carrier officer_
As for the requirement of Rule 40B that a Hearing be held within ten days after an employee is held out of service pending investigation, the Board is inclined to the view that the Claimant was removed from service by the Carrier on March 14, rather than removing himself to participate in the EAP as the Carrier suggests. Under Rule 40B, the Hearing should have been scheduled to be held on or before March 24, and the March 27 date was outside that time limit. However, the Board cannot say in this case that the Carrier's failure to schedule a Hearing within the time set by Rule 40B warrants that the charges be dismissed. The Board recognizes that the time limits and other mutually-agreed procedural safeguards in Rule 40 are essential elements of the Agreement due process to which employees are entitled. Rule 40B in particular serves to limit the financial risk borne by an employee who is rightly or wrongly held out of service pending Investigation. Where as employee is prevented from earning a livelihood, it is of paramount importance that the parties adhere to their contractual time limits. However, in this case, the Organization failed to prove that the failure to schedule the Hearing within the ten-day limit deprived the Claimant of Agreement due process or increased his financial risk. The Investigation was postponed repeatedly by mutual agreement of the parties, and for much of that time, the Claimant would have been unavailable for a Hearing due to his participation in inpatient and residential EAP treatment. The Organization failed to prove that this procedural irregularity prejudiced the Claimant or deprived him of a fair and impartial Investigation. Under these circumstances, the technical violation of Rule 40B does not require dismissal of the charges or sustaining the claim.
The Organization also objects that the Hearing Officer served a dual role as both the official who ordered his removal from service on March 14 and the one who conducted the Investigation on July 27, 2006. Recognizing that the dual role alone does not prevent the Hearing Officer from serving as a fair and impartial finder of fact, the Organization asserts that the Hearing Officer's pre judgment of the Claimant is illustrated by his decisions to admit and give weight to hearsay and double hearsay Form 1 Award No. 39382
into the record over the Organization's objections. However, a careful review of the Hearing record does not disclose any errors prejudicial to the Claimant. Even though the Hearing Officer had ordered his removal from service after the March 11 incident, his conduct of the Hearing was even-handed. The Organization and the Claimant were given the opportunity to examine and respond to all documentary evidence, to present and fully question all witnesses, to make their objections and to present their defense in full. The Hearing Officer conducted a fair and impartial Investigation.
On the merits, the Organization contends that the Carrier failed to meet its burden of proof. It is true that the only witness at the Hearing was the Assistant Roadmaster whose first-hand knowledge was limited to the fact that the Claimant was intoxicated on the evening of March 11; he had observed none of the offensive conduct with which the Claimant was charged. The details of the Claimant's alleged conduct came from other employees, a motel guest, and the motet manager, statements often based on second and third hand information. None of those employees or the night clerk appeared at the Hearing.
However, the statements were sufficiently reliable to provide substantial evidence supporting the Carrier's decision. First, it is notable that when interviewed by the Assistant Roadmaster on the evening of March 13, the Claimant did not deny engaging in the conduct described - he simply could not remember. Even at the Hearing, the Claimant admitted that he had been intoxicated, that he had been carrying around (but not "humping") a hobby horse, and that "some people" might interpret his conduct as having been disruptive to the motel's guests. The Claimant even admitted positioning his laptop in his window so it could be seen from the pool, although he insisted that he did so on March 10, not March 11, and that the image displayed was his non-pornographic screensaver rather than "a babe." Most tellingly, the Claimant testified, "I'm not saying I wasn't intoxicated or wasn't drunk or wasn't partially blacked out some of the night, but 1, I mean yeah, maybe I guess I could have done some of that stuff" He acknowledged that he might have blacked out part of the evening. Thus, the hearsay statements coincided significantly with the Claimant's own account. Second, while the employees' statements offered into evidence (other than the Assistant Roadmaster's) were signed by the Director of Human Resources who transcribed them, but not by the employees themselves, the Assistant Roadmaster witnessed those statements as they were given and attested to their accuracy. Form I Award No. 39382
Most important, the Hearing Officer offered the Organization the opportunity to request to have these witnesses and the Human Resources Director called to the Hearing for examination, but the Organization disavowed any interest in doing so. The Carrier was entitled to rely on the witness statements, and did not violate the Claimant's rights in so doing. The only conduct alleged that was never directly Qhserved_ by My witness was the Claimant allegedly exposing himself- Although several employees reported having heard the allegation, no employee, motel guest, or staff reported having seen him do so. Thus, except on that one point, it was not an abuse of discretion for the Carrier to credit the witness statements it received in concluding that the Claimant committed the offense charged.
The Carrier demonstrated that there was substantial evidence to support all charges other than that the Claimant exposed himself. However, even without having proved that the Claimant engaged in that particular conduct, the Carrier amply demonstrated that the Claimant engaged in offensive conduct with the hobby horse, displayed pornographic pictures from his laptop to motel guests, was intoxicated in the motel lobby and disruptive of other motel guests, all in violation of Operating Rule 1.6, Conduct, which prohibits immoral and discourteous conduct; Operating Rule 1.9, Respect of Railroad Property, which requires employees to behave in such a way that the railroad will not be criticized for their actions; and Engineering Instruction 21.2, which requires employees using BNSF-provided lodging facilities to act professionally and courteously at the lodging facility, and to refrain from on or off-duty behavior that discredits the Carrier.
Finally, the Organization charges that the dismissal was arbitrary, capricious, and excessive because the Carrier proved only that the Claimant was intoxicated, and the impact of the unproven charges on the discipline decision cannot be eliminated. However, as we have indicated, the Carrier proved the vast majority of the charges. While the Board applauds the Claimant's efforts to overcome the disease of alcoholism, his illness does not excuse his repeated misconduct. Leniency in such a case is a matter for management's discretion, not ours. Given the nature of the offenses proved, and the fact that this was the Claimant's second similar offense in less than one year, we fmd that the dismissal decision was not arbitrary, capricious, or excessive.
Form 1 Award No. 39382
LABOR MEMBER'S DISSENT
TO
AWARD 39382, DOCKET MW-40280
(Referee Kohn)
What is abundantly clear from an uncomplicated reading of the above-quoted rule is that an employe who has been in service sixty (60) calendar days or more will not be disciplined or dismissed without a proper hearing. What is equally clear from an uncomplicated reading of the above-quoted rule is that the words "wile' and "shale' are mandatory, not directory. In support of our position in this regard are Third Division Awards 11225, 12092, 12397, 12632, 16799, 18352 and 23482 which are but a mere sampling of the plethora of decisions of this Board which held to the effect that "wile' is MANDATORY vis-a-vis "directory". See also Third Division Awards 10852, 13097, 13721, 13959, 14204, 17947, 22258, 22898, 23459, 23496, 25465, 25888,
Labor Member's Dissent28133 and 28927 which held to the effect that "shall" is MANDATORY vis-a-vis "directory". See also awards concerning "shall" and "will" relative to the time limits for claims handling which also support our position and are so numerous as to preclude the necessity of citation herein. Moreover, it is abundantly clear that where the parties intended for the contractual provisions of Rule 40 to be permissive and/or directory, the word "ma ' appears. The salient point here is that the Majority's findings in Award 39382 are plainly grounded on an erroneous premise.
In the dispute which precipitated the award in question, the Carrier conceded its nonfeasance, i.e., that the investigation was not held within the ten (10) day time limit agreed to by the Parties in Rule 40B. Therefore, from an uncomplicated reading of the record of this case, due process in accordance with the provisions of Rule 40B did NOT occur. However, instead of sustaining the claim based on the Organization's properly presented procedural argument, the Majority ignored the literal, common and ordinary meaning of the above-quoted Rule 40 and improperly considered the merits of the discipline. Moreover, as if to add insult to injury, the Majority's finding created out of whole cloth its own interpretation of Rule 40B. The point is, the Majority modified the agreed to language of Rule 40. A modification which finds no essence in the Agreement. Inasmuch as it is a fundamental axiom that the Board is without authority to amend or modify the Agreement, it is crystal clear that the Majority exceeded its jurisdiction by adding a condition to the Agreement in this instance and rendering Rule 40B ineffectual. The condition which the erroneous "directory" premise led the Majority to devise was that the Carrier's violation had not prejudiced the Claimant. While not altogether new, this conclusion runs contrary to the clearly predominant view of arbitral authority with regard to the identical contractual language, including substantial and recent precedent involving this Carrier and on this property. In this instance, the Majority displayed naivete in departing from both time honored and recent decisions of arbitrators well-versed in the railroad industry. The findings demonstrate conclusively that the Majority attempted to look behind the clear contractual language of Rule 40 to fashion its anomalous brand of industrial justice. Such maverick views of individualized industrial justice violated a hornbook principle of How Arbitration Works (Elkouri, q g_l.) and rendered the findings palpably erroneous and of no precedential value whatsoever.
To emphasize just how wrongheaded Award 39382 is, we invite attention to a sampling of the awards which considered the same issue, the same contractual language and which sustained the claim for the Employes. The below listed sampling of such awards represents the mainstream, predominant view of the Board on this issue:
Labor Member's Dissent
Award 39382
Page Four"Whatever the parties' different intents may have been the arbitrator `...is constrained to give effect to the thought expressed by the words used...' as the company states in quoting from Phelps Dodge .z' The principle enumerated in this latter Award originated in an arbitration conducted under a NLRA protected unionmanagement relationship. More pertinent to this industry is the arbitral precedent which states that the function of the `rights' arbitrator under Section 3 of the RLA is to `...interpret labor agreements_,' as they are 'written'.22 Arbitrators in this industry have always held that the `...terms of (a) written agreement must prevail...'.' Arbitration Awards issued in this industry tell us that we must `...give common or normal meaning to the language used in (an) agreement...' and that
Labor Member's Dissent
