Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 42706 Docket No. MW-43281 17-3-NRAB-00003-150541
The Third Division consisted of the regular members and in addition Referee I.
B. Helburn when award was rendered.
(Brotherhood of Maintenance Way Employes Division (IBT Rail Conference
PARTIES TO DISPUTE: (
(BNSF Railway Company (Former Burlington Northern (Railway Company)
STATEMENT OF CLAIM:
"Claim of the System Committee of the Brotherhood that:
(1) The discipline (dismissal) imposed upon Machine Operator C.
Gloria by letter dated July 30, 2014 for alleged violation of '…MWOR 6.51 Maintaining a Safe Braking Distance and MWOR 6.50 Movement of On-Track Equipment.' in connection with his alleged '… failure to properly operate equipment resulting in collision and damage to equipment on June 27, 2014.' was on the basis of unproven charges, arbitrary, excessive and in violation of the Agreement (System File C-14-D070-10/1014-0374 BNR).
(2) As a consequence of the violation referred to in Part (1) above,
Claimant C. Gloria shall be reinstated to service with seniority and all other rights and benefits unimpaired, his record cleared of the charges leveled against him and he shall be made whole for all wage loss suffered."
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.
Parties to said dispute were given due notice of hearing thereon.
The Carrier notes that the Claimant rear-ended the tie plugger and that whether or not that operator radioed his intention to stop is irrelevant. Any excess radio chatter did not impede the Claimant's vision or prevent his stopping short of the tie plugger. A proper dismissal followed the Claimant's second serious rule violation within the review period. The notice of Investigation was mailed on June 30, 2014, within the allotted time, with the date of mailing, not the date of receipt of the notice, July 3, 2014, the critical date. In case the notice of investigation is deemed untimely, numerous decisions support a penalty that does not set aside the dismissal absent a showing of prejudice. If the claim is sustained, the Claimant should receive lost seniority and wages but no other benefits. Wages received should be offset by outside earnings.
The Organization alleges that the Carrier violated Rule 40 by failing to provide the required five day notice of the Investigation. Evidence is not substantial and does not establish a violation of the MOWORs because compliance might not have prevented the accident. Nor is there evidence that the Claimant was within 50 feet of the tie plugger after not being notified that the machine had stopped. The Claimant should be reinstated with lost seniority and wages without an offset for outside earnings.
With reference to this case, has Rule 40.C been violated if the notice of investigation to be conducted on July 7, 2014, was mailed on June 30, 2014 and was first available for pick-up on July 3, 2014, four days before the Investigation. There are on-property and other awards on both sides of the question. This Board has focused on the on-property awards. Public Law Board 3460, Award No. 18, a 1985 award with I. M. Lieberman as Neutral Referee, in essence found the mailing date, not the receipt date, of a denial of a claim to be the critical date. Public Law Board 4370, Award No. 63 involved the claim of a dismissed employee, with the denial admittedly coming after 60 days. The 1997 award, Herbert Marx, Referee, treated the claim as a continuing claim to be sustained until the date of the tardy denial. The following year in Third Division Award No. 32889, Gerald Wallin, Neutral Referee, chaired a Board that considered separate suspension and dismissal claims involving the same claimant. The Board found that NDCD 16 did not apply to the finite suspension claim, where denial was untimely, but did apply to the dismissal claim, which involved continuing liability. In essence, the Third Division award followed precedent set by the 1997 Public Law Board award.
On the other hand, in 2006, Third Division Award No. 32811, Peter Meyers, Neutral Referee, considered a dismissal case in which the denial of a claim was mailed within 60 days but received on the 61st day after the Carrier received the claim. The Board, with Carrier members dissenting, found a violation of Rule 42.A. Third Division Award No. 37842 followed the above-noted award in 2006 and involved an alleged failure to properly bulletin a vacancy. The Board, Ann Kenis, Neutral Referee, noted that the Carrier received the claim on June 28, 1999 and responded with a denial on August 27, 1999. The Board did not resolve the "mailed/received dilemma," finding instead that the Carrier could not show compliance with Rule 42.A because there was no evidence of "when or how" the denial letter was dispatched so that the Carrier could not show that the 60-day requirement had been met.
Third Division Award 32889 explained that "We follow this [Marx Award] precedent because to do so provides the parties with a greater degree of certainty and predictability in their claims handlings process." This Board, subscribing to the reasoning expressed in the Third Division Award, follows the precedent set in the latest, definitive on-property award, and thus finds a violation of Rule 42.A.
Where the notice of Investigation is concerned, there is another, compelling reason, independent of Referee Meyers' Award, to focus on the date received rather than the date mailed. The language requiring five days' notice prior to an investigation could, at least theoretically, become meaningless with a focus on mailing date rather than date of receipt or, alternatively, date of availability for pickup. The Claimant received only four days' notice. Here the Board acknowledges that, apparently, the Claimant never received notice from the Carrier because he never picked up the notice sent by the Carrier. However, the Carrier must only make the notice available five days prior to the investigation and cannot be held responsible for the Claimant's lack of diligence. The more dire case would be when the notice was mailed within 60 days but for whatever reason was not delivered or made available for receipt until there was less than five days before or even past the time of the Investigation.
The claim must be allowed as presented. Because the claim is sustained, the remedy is intended to be consistent with that provided in recent on-property cases. The Claimant's dismissal is hereby rescinded and must be expunged from his records. He shall be returned to service without loss of seniority or benefits. In addition, the Claimant is entitled to compensation for all lost wages including overtime he would have been offered and likely would have worked but for the dismissal to the actual date he is returned to service. Any monies earned or paid to the Claimant, except all monies that he was receiving before being dismissed and that continued after dismissal, are to be deducted from lost wages owed to him. The Claimant is further entitled to be reimbursed for any and all out-of-pocket healthcare expenses that he incurred as a consequence of his dismissal.
AWARD
Claim sustained.
ORDER
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.
NATIONAL RAILROAD ADJUSTMENT BOARD By Order of Third Division
Dated at Chicago, Illinois, this 12th day of July 2017.