Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD

THIRD DIVISION

Award No. 42848 Docket No. SG-43024 18-3-NRAB-00003-150179

The Third Division consisted of the regular members and in addition Referee Patricia Bittel when award was rendered.

(Brotherhood of Railroad Signalmen

PARTIES TO DISPUTE: (

(BNSF Railway Company (Former Burlington Northern (Railroad Company)

STATEMENT OF CLAIM:

"Claim on behalf of the General Committee of the Brotherhood of Railroad Signalmen on the BNSF Railw ay Company:

Claim on behalf of N.A. Jones, for reinstatement to service w ith compensation for all lost w ages, including overtime and skill pay, w ith all rights and benefits unimpaired, and w ith any mention of this matter removed from his personal record, account Carrier violated the current Signalmen's Agreement, particularly Rule 54, w hen it issued the Claimant the harsh and excessive discipline of dismissal without providing him a fair and impartial Investigation and w ithout meeting its burden of proving the charges in connection w ith an Investigation held on September 5, 2013. Carrier's File No. 35 14 0009. General Chairman's File No. 13 041 BNSF 121 T. BRS File Case No. 15119 BNSF."

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 Claimant's driver's license expired on July 28, 2013. He did not tell supervision and continued to drive commercial vehicles for the Carrier. The Carrier found him in violation of Safety Rule 12.1.1, the revised Signal DOT/CDL Policy and MOWOR 1.13. At the time, the Claimant w as under tw o Level S suspensions dated May of 2011 and August of 2012 for failing to comply w ith instructions. As a result, he w as dismissed. The Organization protested the discipline as unjust and the matter w as processed to arbitration. The parties to said dispute w ere given due notice of hearing. This Division of the Adjustment Board has jurisdiction over the dispute here concerned.

Realizing that many signal employees had allow ed their DOT medical certification and/or CDL to expire, BNSF granted a one time, 0 day grace period

for them to come into compliance with the Policy without penalty. In addition, meetings with all signal employees were held during which the importance of this policy was explained, as well as the consequences for those who failed to maintain the required medical clearance and licensing going forward.

BNSF sent the Claimant several advance reminders to the address he had on file with the Company, advising that his license would soon be expiring. The first one was mailed 60 days before his license was scheduled to expire and the second 30 days beforehand. The Claimant's driver's license expired on July 28, 2013. The Carrier maintains it cannot be held responsible for Claimant not opening or reading his mail. In the Carrier's view, the rule violations are clear, and given his disciplinary history, dismissal was proper.

The Claimant testified that he never received any of the letters the Carrier mailed to him. The Organization notes the record is devoid of any proof that these letters were ever delivered. The Organization concludes the Carrier failed to notify Claimant of the need to renew until August 6, 2013, then, less than 24 hours later, it issued him a Notice of Investigation. As the Organization sees it, the Carrier was completely unreasonable in the amount of time it gave the Claimant to comply. The Organization points out that as soon as the Claimant learned his license had expired, he did everything imaginable to get it immediately renewed. In the Organization's view , he did not deliberately violate any rule and his dismissal w as improper.

The Organization also protests the triple jeopardy in the Carrier's treatment of the Claimant's case. It notes Claimant w as also accused of violating MWSR S 12.1.1 for continued operation of Company vehicles without a valid driver's license, as well as for failing to notify his supervisor that his license had expired. In the Organization's assessment, this piling on of offenses is untenable since the offenses are all for exactly the same alleged conduct.

DECISION:

Claimant testified as follows:

"I did not realize that my license was expired on July 28th. And I was made aware by Mr. Harper and Mr. Russell Christian, my Foreman. And, um, you know, I was made aware that I needed to get it taken care of as soon as possible. And from that point on, I, uh, attempted to get it done, I believe the same day after work hours, and I was not able to get it done,…."

*****

Well, my explanation is simply this, you know, I'm out there working 5 days a week, a get a day and a half at home, and renewing my license was, uh, you know, it, I just wasn't thinking about it at the time, so, you know, I wasn't made aware until my foreman called me and Mr. Teddy Harper called me and made me aware of it."

This testimony establishes that the Claimant was unaware that his license was expiring and did not knowingly violate any rule. The Board affirms the Claimant's responsibility for maintaining his license. Even so, the facts of the case must be seen in context. He was issued his Notice of Investigation just 24 hours after he first learned that his license had expired. The Claimant acted with lightning speed to renew his license as soon as he understood it had expired.

There were mitigating circumstances in this case which the Carrier failed to give adequate consideration. While ultimate responsibility for maintaining a valid driver's license remains w ith the Claimant, the Carrier cannot improperly invoke the harshest of discipline w ithout taking into account all relevant factors and giving those factors their proportionate w eight. This aw ard is limited by the particular facts of the case and does serve as precedent.

The claim is granted in part. Claimant's dismissal shall be reversed and his discipline w ill be reduced to a Formal Reprimand w ith a 12-month review period. The Carrier shall immediately reinstate Claimant, subject to its policies on return to work His reinstatement w ill be w ithout back pay, retroactive benefits or other compensation.

AWARD

Claim sustained in accordance with the Findings.

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 10th day of January 2018.