Form t
Page 3The 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.
Claimant S. Wolfe was a Section Foreman and has held seniority in various classifications during his more than 2'7 years of service as a BMWE-represented employee.
On the morning of December 18, 2008, the Claimant was assigned and working as a Relief Track Inspector on the Hi Line Subdivision of the Montana Division. The Claimant was operating a Hy-Rail vehicle over the Carrier's mainline track. It is uncontested that anyone occupying the main track using such a vehicle must strictly comply with the relevant Rules and Instructions. The Carrier contends that the Claimant violated certain Rules and Instructions, resulting in a collision between the Claimant's IIy-Rail vehicle and a westbound freight train. According to the Carrier, the Claimant committed two Rule violations that ultimately led to the collision. First, he did not engage the HLCS mechanism that would have indicated the location of his Hy-Rail. Second, he violated his track authority.
By letter dated December 18, 2008 the Carrier directed the Claimant to report for a formal Investigation on December 26, 2008:
The Hearing was postponed by mutual agreement of the parties and eventually took place on January 20, 2009, pursuant to which, in a letter dated February 9, 2009, the Claimant was notified that he was issued a 30-day Level S record suspension for his violation of the BNSF Engineering Instruction 15.4.11Hy-Rail Limits Compliance System (HLCS). The Claimant was also dismissed for his violation of the following Rules, both of which were categorized as dismissible offenses:
By letter dated February 26, 2009, the Organization appealed the decision based on the contentions (1) the Carrier failed to meet its burden of proof (2) the discipline assessed was unwarranted and excessive, and (3) the Claimant was denied a fair and impartial Hearing. On April 24, 2009, General Manager R. Bartoskewitz denied the appeal. On May 5, 2009, the Organization appealed the matter to Form 1 Award No. 41142
General Director of Labor Relations W. A. Osborn, who denied the appeal on July 3, 2009. A conference was held, but the parties were unable to resolve the matter. The matter was then appealed to the Third Division.
According to the Organization, the discipline imposed upon the Claimant was unwarranted, harsh, and excessive. The Organization contends that the burden of proof in a discipline matter such as this is on the Carrier and asserts that burden has not been met. The Organization claims that (1) the Carrier has been arbitrary and capricious in its treatment of the Claimant (2) the Carrier abused its discretion, and (3) the Carrier's determination to discipline the Claimant was based on inconclusive evidence, thus rendering the discipline harsh and excessive. The Organization further contends that the Claimant was denied a fair and impartial Hearing. In addition, the Claimant was denied the right to utilize the Alternative Handling Process. (See Third Division Award 41143.) The Organization asserts that the Carrier should now be required to rescind the discipline and make the Claimant whole for all losses.
Conversely, the Carrier takes the position that it met its burden of proof and that the Claimant was afforded a fair and impartial Hearing in accordance with the requirements of the Agreement. According to the Carrier, a review of the transcript developed during the Hearing makes clear that the Claimant is guilty as charged. The evidence shows that the Claimant failed to safely operate equipment as required. Based on his transgressions, the Claimant's discipline was appropriate. In addition, because the monetary value of the damage to the Hy-Rail vehicle exceeded $100,000.00, the Claimant was not entitled to access the Alternative Handling Process. (See Award 41143.)
In discipline cases, the Board sits as an appellate forum. We do not weigh the evidence de novo. As such, our function is not to substitute our judgment for that of the Carrier, nor to decide the matter in accord with what we might or might not have done had it been ours to determine, but to rule upon the question of whether there is substantial evidence to sustain a finding of guilty. If the question is decided in the affirmative, we are not warranted in disturbing the penalty unless we can say it appears from the record that the Carrier's actions were unjust, unreasonable or arbitrary, so as to constitute an abuse of the Carrier's discretion. (See Second Division Award 7325 and Third Division Award 16166.) Form 1 Award No. 41142
After a thorough review of the record, the Board has not found substantial evidence to warrant upholding the Carrier's position in whole. The Board finds that the Carrier proved that the Claimant failed to engage his HLCS and violated his track authority. The resolution of the Alternative Handling issue is dealt with in Award 41143. The Board notes that the Claimant's 30-day Level S record suspension was reasonable for his HLCS violation; however, the Board finds that the discipline of dismissal was too severe a penalty. Therefore, the Board will reduce the dismissal to a long term suspension. The Claimant shall be reinstated with seniority unimpaired, but without backpay.
This 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.
LABOR MEMBER'S DISSENT
TO
AWARD 41142, DOCKET MW- 41340
(Referee Bieng)
Although Awards 41142 and 41143 involve the same Claimant and the same incident. the awards address separate disputes over the interpretation and application of the Agreement. As explained within the Labor Member's Dissent to Award 41143, had the Carrier not violated the Agreement by denying the Claimant the benefits of the contractually agreed Alternative Handling Process, the Claimant would not have been subjected to the disciplinary process and, thus, this case would never have arisen. However, having already violated the Agreement by spinning a property damage estimate out of thin air to suit its purpose, a charge letter was issued, an investigation was held and the Claimant was dismissed. Inasmuch as the Board in the end ordered that the Claimant be reinstated to service with seniority unimpaired, a limited concurrence is warranted. However, in its decision in Award 41142, the Majority has made a fundamental error which has led it to an erroneous decision. Therefore, dissent is also required.
Rule 40 of the parties' Agreement provides that before discipline is assessed, the employe will be afforded a fair and impartial hearing. In this case, the hearing afforded the Claimant was neither. While there were multiple breaches of the duty to afford a fair and impartial hearing, the fact is most clearly shown by the fact that the Carrier intentionally created an incomplete recording of the conversation between the Claimant and the dispatcher from whom he obtained track and time. The Claimant testified that a full record of his conversation with the dispatcher would reveal exculpatory evidence. However, instead of making the complete recording of the conversation available, as would be required to fully convey the factual background of the incident, the Carrier refused to allow any parts of the conversation that did not support its decision to dismiss the Claimant to be heard. It should be remembered that it was the Carrier who was in sole possession of the full recording and could have made the recording available had it been interested in affording the Claimant a fair and impartial hearing. However, throughout the entire process, the Carrier took the position that it was not required to allow full development of the facts, but that it only was required to produce substantial evidence supporting its finding of guilt. A proceeding can under no circumstances be described as "fair and impartial" when the evidence is restricted to only that which tends to support the prosecution's side.
Thankfully, within Award 41224 this Division has subsequently reversed its error and found that when BNSF denies an employe a fair and impartial hearing, the discipline must be set aside. The reader is referred to that award for a thorough discussion of the principles involved. The same principles should have been applied in the instant case.