Form I Award No. 41530The 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 ,tune 21, 1934.
This Division of the Adjustment Board has jurisdiction over the dispute involved herein.
The facts in this case are substantially undisputed. The Claimant established, and currently holds, seniority as a Laborer. When events giving rise to the instant complaint occurred, the Claimant was assigned as a Laborer on the section crew at Laurel, Montana, with scheduled on-duty hours of 7:30 A.M. to 4:00 P.M. The record establishes that at approximately 3:22 P.M. on October 22, 2009, Assistant Roadmaster K. Heggie observed the Claimant using his cell phone while on duty and seated in a company-owned section truck parked near the Laurel yard office. According to Heggie, the Claimant was holding his telephone in front of him and was looking at it. At the time, Heggie believed that the Claimant was texting, and thus confronted the Claimant with that suspicion. The Claimant denied that he had been texting, and instead asserted that he had merely been looking at his phone when Heggie happened to observe him. Heggie nevertheless concluded that the Claimant had used his cell phone while on duty in some manner, which, absent proper authority to do so, constituted a violation of the Operating Rules cited above.
The Claimant was consequently directed to attend a formal Investigation on October 30, 2009, at which he was charged with using an electronic device without proper authority. At the Investigation, Assistant Roadmaster Heggie explained that the Claimant had not been authorized to use a cell phone while on duty, and had, in fact, been previously instructed to leave it at home "so that he would not be tempted to use it at work." Heggie further testified that he had specifically instructed the Claimant not to bring his cell phone to work on at least six separate occasions.
At the Investigation, the Claimant admitted that he had used his cell phone at work on the date in question, but he asserted that he had done so only to check the time. Therefore, we cannot, as a matter of fact, draw any conclusion other than that the Claimant was guilty of the charges at hand. The Claimant used his cellular telephone while on duty without proper authority, and we do not find his alleged reason for doing so exculpatory. According to cited Rule 1.10, when permission for use of Form I Award No. 41530
cellular telephones on duty is granted, which was not the case here, it is authorized only for purposes of voice communication. Furthermore, the Claimant acknowledged at the Investigation that on more than one prior occasion, Assistant Roadmaster Reggie had, in fact, instructed him to leave his cell phone at home. We find in favor of the Carrier that Reggie's order to that end constituted more than a mere "suggestion," and the Claimant's failure to adhere to the clear directive constituted a proven violation of Rule 1.13.
As to the suitability of a 20-day suspension under these particular circumstances, we find nothing unreasonable in the Carrier's response to the Claimant's proven Rule violations. The record evidence clearly shows that the Claimant was given fair warning concerning the use of his cellular telephone while on duty. The Claimant obviously failed to heed the Carrier's previous cautions, and he did so at his own peril. Furthermore, the record also establishes that the Claimant was suspended for 15 days in 200$ for failing to follow instructions. Thus, we find no basis for disturbing the instant discipline. The charges were proven and the amount of discipline was appropriate.
This Board, after consideration of the dispute identified above, hereby orders that an Award favorable to the Claimant(s) not be made.