Respectfully submitted,Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 42599 Docket No. MW-42875 17-3-NRAB-00003-150089
The Third Division consisted of the regular members and in addition Referee Robert A. Grey when award was rendered.
(Brotherhood of Maintenance of Way Employes Division ( IBT Rail Conference
PARTIES TO DISPUTE: (
(Springfield Terminal Railway Company
STATEMENT OF CLAIM:
"Claim of the System Committee of the Brotherhood that:
(1) The discipline (dismissal) assessed Mr. D. Lafountain, Jr. by letter dated March 31, 2014 in connection with allegations that he used company vehicles and employes during work hours for personal business was without just and sufficient cause and in violation of the Agreement (Carrier's File MW-14-10).
(2) As a consequence of the Carrier's violation in Part (1) above, we
request that Mr. Lafountain must be reinstated with seniority unimpaired and compensated for all wage loss suffered, including all straight time, overtime, holidays, personal days, vacation and benefits and any other losses as suffered due to the Carrier's improper dismissal."
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.
Award No. 42599 Docket No. MW-42875 17-3-NRAB-00003-150089 Parties to said dispute were given due notice of hearing thereon.
The Claimant received the above-stated discipline after an investigation "to develop the facts and place your responsibility, if any, in connection with the incident(s) outlined below: It is alleged that prior to your removal from service as Superintendent Track West, on October 21, 2011, you utilized Carrier vehicles and Carrier employee(s), including yourself, during regular work hours while receiving pay from the Carrier, to conduct personal business; namely, bringing scrap material to scrap yard(s) on various of occasions, without the knowledge or permission of your superior(s). This alleged misconduct may potentially constitute a violation of the Carrier's Safety Rules."
The Claimant was removed from service on October 21, 2011 for the same underlying conduct/incidents which are the subject of the claim at hand. At the time, the Claimant was employed by the Carrier as a Superintendent. While employed as such, he had maintained his seniority rights in the Organization. On October 21, 2011, shortly after his removal from service as a Superintendent, the Claimant exercised his seniority to "bump" into the workplace as a non-supervisor Carrier employee member of the Organization. On October 24, 2011, the Claimant appeared on the property for work, as a non-supervisor Carrier employee member of the Organization, believing same had been approved by a Carrier officer. Later that same day, the Claimant was directed to cease working, and a few hours later he was escorted off Carrier property. The Claimant complied. The Carrier maintained that the Claimant had been dismissed in all capacities and was no longer a Carrier employee. The Organization maintained the Claimant had properly exercised his seniority rights under the Agreement, and could continue to serve as an employee, with the right to an Article 26.1 fair hearing before he could be dismissed from Carrier employment. The Carrier disagreed.
The dispute culminated in Third Division Award 41808, issued on February 27,
2014. In pertinent part, Award 41808 reinstated the Claimant to the Carrier's rolls as an employee with full seniority, and "permitted [Carrier] to timely issue him a Notice of Investigation under Article 26.1 from the date of his reinstatement onto the rolls, with respect to its determination of cause for denying him his right to displace on October 24, 2011 and determining his seniority, if it so chooses." The Carrier member of that Board filed a seven page Dissent. The Labor member of that Board filed a four page Response thereto.
Form 1 Award No. 42599
Page 3 Docket No. MW-42875
17-3-NRAB-00003-150089
On March 3, 2014, the Carrier issued the above Notice for an Investigation and Hearing. On March 17, 2014, the Hearing for said Investigation took place. On March 31, 2014, the Carrier notified the Claimant he had been found guilty, and was "terminated immediately for cause." The Organization appealed the discipline stemming from the March 17, 2014 Hearing, leading to this proceeding.
Upon thorough review of the entire record and the parties' arguments, the Board finds the Organization's procedural objections unpersuasive. The Board finds that the Claimant was afforded due process, including a fair and impartial Hearing pursuant to Article 26.1 and Award 41808. The Investigation and Hearing were timely in accordance with the holding of Award 41808. That Board was aware of the contents and time requirements of Article 26.1. To adopt the Organization's position that the current Investigation and Hearing were untimely would render that Board's holding meaningless, and/or impossible ab initio. The Board declines to do so. Additionally, the Claimant and the Organization had actual notice and knowledge of the subject matter of the Investigation. There were no surprises. The Claimant and the Organization had ample time and opportunity to prepare an adequate defense, and were not prejudiced by the circumstances.
Regarding the merits, the Board finds substantial evidence in the record to sustain the Carrier's determination.
Assuming, without finding, that there was a history of Carrier employees and equipment being used for non-Carrier matters during down time while on Carrier time, the record does not support the Claimant's contention that same could be done without the knowledge, permission and/or authorization of the Carrier. The Claimant's statements and the statements of the six former and/or current Carrier employees do not prove otherwise. As an affirmative defense, the burden of persuasion rests on the Claimant and/or Organization. That burden has not been met. Rather, the record establishes that, whether or not there was such a history, the Claimant knew or should have known that he could not use Carrier employees and/or equipment on Carrier time for personal business without the knowledge, permission and/or authorization of a Carrier official. The Claimant admitted orally to a Carrier Police Officer and State Trooper, and in writing and in hearing testimony, that he did not seek such permission and/or authorization. Tellingly, he testified that he did not know what the answer would have been had he asked for such permission and/or authorization. The Claimant's explanations as to why he did not think it was necessary to ask for same are not supported by the record, and are unpersuasive.
Form 1 Award No. 42599
Page 4 Docket No. MW-42875
17-3-NRAB-00003-150089
Under the facts and circumstances of this record, the Board finds that the discipline assessed by the Carrier was with just and sufficient cause. It was neither arbitrary, capricious, unproven nor in violation of the Agreement. Therefore, said discipline will not be disturbed by the Board.
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 19th day of April 2017.
LABOR MEMBER'S DISSENT
TO
AWARD 42599, DOCKET MW-42875 (Referee Robert A. Grey)
The Majority's findings in this case ignore clear and unambiguous contract language, make a mockery of due process and question an employes' ability to receive fair treatment in the Section 3 process. The decision is lacking basic reason and logic and is incompatible with just cause and fundamental fairness. Consequently, this dissent outlines three (3) major flaws in connection with the Majority's findings that led to an incorrect decision. Because of these flaws, this award must never be followed by any Board in the future.
First, it goes without saying that Section 3 panels are to interpret agreement language as written. No arbitrator may take it upon themselves to add, subtract or modify agreement language. In this case, the Majority completely glanced over mandatory agreement language and in place of that language applied a subjective interpretation of a previous Third Division Award. To begin with, attention is directed to the clear terms of Article 26 which, in pertinent part, reads:
"No employee will be disciplined without a fair hearing. The notice of hearing will be mailed to the employee within 14 days of the Carrier's first knowledge of the act or occurrence. The notice of hearing will contain information sufficient to apprise the employee of the act or occurrence to be investigated. Such information will include date, time location, assignment, and occupation of employee at the time of the incident. The notice of hearing will also include a list of witnesses to be called. The hearing will be scheduled to take place on a regularly scheduled work day within 30 days of the Carrier's first knowledge of the act or occurrence. ***" (Emphasis added)
However, instead of applying this clear mandatory language in this instance, the Majority, in pertinent part, held:
"*** The Investigation and Hearing were timely in accordance with the holding of Award 41808. That Board was aware of the contents and time requirements of Article 26.1. To adopt the Organization's position that the current Investigation and Hearing were untimely would render that Board's holding meaningless, and/or impossible ab initio. The Board declines to do so. ***"
Rather than interpreting the Agreement language between the parties, which is clear and unambiguous, the Majority relied upon the findings of a previous award. In this regard, the Organization never agreed that Third Division Award 41808 was intended to overlook the mandatory language of Article 26.1. The Organization read the award as not sustaining that claim in full based on the Carrier's denial of a fair and impartial hearing and instead gave the Carrier the opportunity to issue a timely notice. This meant that the if the Carrier could timely issue a
Labor Member's Dissent Award 42599 Page Two
notice of investigation under the Agreement that it could charge the Claimant. The Majority in Award 41808 did not rewrite the agreement to allow the Carrier to ignore clear mandatory Agreement language, nor did it have the authority to do so. Third Division Awards 1248, 18423, 20276, 20956 and 40229 are a mere sampling of awards of this Division that have addressed this issue. For example, Awards 1248 and 20956, in pertinent part, held:
AWARD 1248:
"*** This 'Board must construe and apply agreements as the parties make them, and it has no authority to change them even to avoid inequitable results from their application.' Award No. 794."
AWARD 20956:
"*** Nor are we authorized to insert such provisions where none exists. Prior awards of this Board are legion on the established principle that the Agreement must be applied and interpreted as written and negotiated between the principals."
The Majority goes on to find that the Claimant and the Organization had actual notice and knowledge of the subject matter of the investigation and had opportunity to prepare an adequate defense. This finding is baffling because the Organization never argued that it did not have knowledge of the facts under investigation. Instead, the Organization asserted that the Carrier cannot wait years to hold an investigation and doing so was contrary to the mandatory language of the Agreement. The Majority's findings miss the point. The Organization did not assert that the Carrier submitted its notice of charges and held the investigation too soon, instead the Organization's position was that the Carrier cannot wait years to hold an investigation. Under the Majority's faulty reasoning, the Carrier could wait years to bring charges against an employe and hold an investigation. That is a nonsensical application of the Agreement provisions and was never the intent of the parties.
The next point is that the Claimant never received an independent review of his case on appeal. The fact is the Carrier found the Claimant guilty of the charges prior to the investigation and the Carrier officer who denied the appeal of discipline in the instant case was the same Carrier officer that denied the discipline appeal that was overturned in Award 41808 and the same individual that sat with the Third Division and wrote a vigorous dissent to Award 41808. In that dissent, this Carrier officer asserted that the Claimant was guilty as charged. In this regard, attention is directed to the penultimate paragraph of the Carrier Member's Dissent to Third Division Award 41808 which, in pertinent part, reads:
Labor Member's Dissent Award 42599 Page Three
"*** Consequently, it should seem to be an exercise in futility to require the Carrier to conduct a formal Hearing, because the relevant facts and evidence demonstrating the Claimant's responsibilityfor conduct that warranted his dismissal had already been established by none other that the Claimant himself."
The Organization presented substantial argument on this critical point and the Majority did not even make a comment on this extremely important and meaningful fact. The Organization's submission specifically cited Third Division Awards 30601 and 33944 in support of our position on this issue. Third Division Award 33944, in pertinent part, held:
"*** As the Board stated in Third Division Award 23427:
'The right of appeal is neither technical nor mechanical. It is an important and meaningful right that is not to be regarded lightly or ignored. The obvious purpose of the appeals machinery is to provide Claimant with independent consideration of his appeal at each appellate level. See Fourth Division Award No. 2642. . . ."' (emphasis in original)." (Emphasis in original)
Again, the Carrier member wrote his dissent to Third Division Award 41808 prior to the investigation in the instant case being held and was the same Carrier officer that eventually denied the Claimant's appeal of discipline. It was simply impossible for the Claimant to receive an independent consideration of his appeal. No matter what facts were developed, the Carrier officer who reviewed the appeal had made prejudgment on this issue multiple times before receiving the appeal of discipline and had reached his decision to deny the appeal no matter what. This effectively made the Claimant's right to appeal meaningless. The Board's sanctioning of this action is definitely in contrast to fundamental fairness and previous decisions on this issue. Interestingly, the Majority used Third Division Award 41808 as gospel, but yet never even commented on the awards cited by the Organization showing that the Claimant had a right to an independent review of his discipline appeal.
The last point to be made is in connection with the Board's findings of guilt. It is readily apparent that the Majority did not properly apply the basic elements of just cause. The Majority in this case, in pertinent part, held:
"Assuming, without finding, that there was a history of Carrier employees and equipment being used for non-Carrier matters during down time while on Carrier time, the record does not support the Claimant's contention that same
Labor Member's Dissent Award 42599 Page Four
"could be done without the knowledge, permission and/or authorization of the Carrier. ***"
Just cause holds that an employer must consistently enforce its rules and that to discipline an employe harshly after having lax enforcement of any alleged policies and/or after condoning behavior over a period of time is against the most basic concepts of just cause. This was clear arbitrary treatment of the Claimant. To show this very basic element of just cause, attention is directed to the well respected text titled Discipline and Discharge In Arbitration, by Norman Brand which, in pertinent part, reads:
"2. Lax Enforcement. Whenthe employer establishes a rule but is lax in enforcement, the implication is that it condones the conduct. Employees may be lulled into a false sense of security. Therefore, an employer may not suddenly begin enforcing a rule without giving clear notice of this intent to employees.351 ***" (Footnote omitted) (Emphasis in original) (Page 81)
Additionally, Elkouri &Elkouri, How Arbitration Works, Seventh Edition also outlines this basic principle of just cause and, in pertinent part, reads:
"Arbitrators have not hesitated to disturb penalties where the employer over a period of time has condoned the violation of the rule in the past. Lax enforcement of rules may lead employees reasonably to believe that the conduct in question is tolerated by management.378 Even where the employee has engaged in conduct that is obviously improper, such as threatening a supervisor, the fact that management had failed to impose discipline in the past can be a signal that unacceptable behavior will not be penalized.379 ***" (Footnotes omitted) (Page 1574)
It is inconceivable that the Majority ignored this basic premise of just cause. This issue was clearly outlined in the Organization's on-property correspondence as well as in its submission at Page 18. In this regard, attention is directed to the pertinent part of the Organization's April 25, 2014 appeal letter which, reads:
"*** Even if the Carrier rules were clear and identified the Vice President of Engineers as the only authority figure that could authorize use of company vehicles and employes, the Carrier would be attempting to enforce rules in this instance, that it has previously failed to enforce. It has been common practice for Carrier Supervisors to use equipment and men when there was down time and no Carrier work to be performed. The Carrier cannot attempt to enforce
Labor Member's Dissent Award 42599 Page Five
"rules against the Claimant when there has been a lax enforcement of the same rules in the past because the Claimant would have no expectation that he would be dismissed as a Maintenance of Way employe for those actions. It is a basic concept of just cause that a Company cannot arbitrarily enforce rules and the Claimant could have no knowledge that his actions would result in loss of employment. See statements of Bruce Wilkins, Bill Wade and Claimant." (Emphasis added) (Employes' Exhibit "A-2", Sheet 5)
It is unrefuted in the record that there was a practice of allowing supervisors to use employes and equipment during down times where there was no other work to be performed. Thus, to charge and find the Claimant guilty of behavior that was accepted by the Carrier over years is incompatible with just cause.
The Majority's findings in this case ignore clear and unambiguous contract language, make a mockery of due process and question an employes ability to receive fair treatment in the Section 3 process. The decision is lacking basic reason and logic and is incompatible with just cause and fundamental fairness.
The Majority's findings in this case led to an incorrect decision that must not be followed by any future Board. For all of these reasons, I emphatically dissent.
Respectfully submitted,
Zachary C. Voegel Labor Member
5
CARRIER MEMBERS' CONCURRING OPINION to Third Division Award 42599
Docket No. MW-42875 Referee Robert A. Grey
The Carrier concurs with Award No. 42599 both on procedural and substantive grounds.
With respect to procedure, the Organization mistakenly states in its dissent to Award 42599 that "Rather than interpreting the Agreement language between the parties, which is clear and unambiguous, the Majority relied upon the findings of a previous award." It should be readily apparent that "the Majority relied upon the findings of a previous award" (i.e. Award 41808) because Award No. 41808 constitutes a final and binding decision in a prior dispute between the parties, and it contained language that permitted the Carrier to conduct the hearing that formed the subject of the dispute involved in Award No. 42599. The pertinent language from Award 41808 is:
"The Carrier is directed to reinstate the Claimant to its rolls as an employee with full seniority, and to make him whole for any losses he may have suffered as a result of the termination of his BMWE seniority, less interim earnings, but is permitted to timely issue him a Notice of Investigation under Article 26.1 from the date of his reinstatement onto the rolls, with respect to its determination of cause for denying him his right to displace on October 24, 2011 and terminating his seniority, if it so chooses."
The Organization complains in its dissent that "...the Organization never agreed that Third Division Award 41808 was intended to overlook the mandatory language of Article 26.1." (Emphasis added.) Regardless of whether the Organization "agreed" or not, Award 42599 specifically and properly held that, "The Investigation and hearing were timely in accordance with the holding of Award 41808. That Board was aware of the contents and time requirements of Article 26.1. To adopt the Organization's position that the current Investigation and Hearing were untimely would render that Board's holding meaningless, and/or impossible ab initio." This is the only logical conclusion that can be drawn from the above-cited language of Award 41808.
Next, it is true that the Carrier officer who denied the appeal of discipline involved in Award 42599 also denied the appeal of discipline involved in Award 41808 and authored a dissenting opinion to Award 41808. In any event, any party referencing Award 42599 in future disputes should ignore the Organization's unsupported contention contained in its dissent to Award 42599, wherein the Organization states that, "It was simply impossible for the Claimant to receive an independent consideration of his appeal." As discussed during the Referee Hearing in this case, that Carrier officer has the right and a duty to advocate on behalf of the Carrier in minor disputes and issue dissenting opinions to Awards. The exercise of such completely permissive activities does not, on its face, mean that the Claimant could not or did not receive the due process that he is entitled to. And the Majority held that, "Upon thorough review of the entire record and the parties' arguments, the Board finds the Organization's procedural objections unpersuasive. The Board finds that the Claimant was afforded due process, including a fair and impartial Hearing pursuant to Article 26.1 and Award 41808." The Carrier's decision to uphold the discipline issued in the instant dispute was supported b y an objective review of the record of the case that was developed on the property. Moreover, the neutral and objective review of that same exact record led this Board to likewise conclude that, "Regarding the merits, the Board finds substantial evidence in the record to sustain the Carrier's determination." The record demonstrated with substantial evidence that the Claimant had improperl y used compan y-owned vehicles and employees while on duty and under pa y to conduct personal business, without the knowledge or permission of the Carrier. This is not condoned and is considered b y this Carrier to amount to theft. And the Board correctl y found that the affirmative defense raised b y the Claimant was not supported by the record, contrar y to the Organization's protestations contained in its dissenting opinion.
Finally, the Carrier concurs with the Majority's conclusion that "...the discipline assessed b y the
Carrier was with just and sufficient cause. It was neither arbitrar y, capricious, unproven nor in
violation of the Agreement." This Award 42599 serves as important precedent on this property.
May 31, 2017
Matthew R. Holt Carrier Member