Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 43057 Docket No. SG-43940 18-3-NRAB-00003-160722
The Third Division consisted of the regular members and in addition Referee George Edward Larney when award was rendered.
(Brotherhood of Railroad Signalmen PARTIES TO DISPUTE: (
(Canadian Pacific (formerly Soo Line)
STATEMENT OF CLAIM:
"Claim on behalf of the General Committee of the Brotherhood of Railroad Signalmen on the Canadian Pacific (formerly Soo Line):
Claim on behalf of T.J. Salto, for payment for all time lost, including overtime, any loss of benefits he has suffered, and any reference to this matter removed from his personal record, account Carrier violated the current Signalmen's Agreement, particularly Rule 32, when it assessed the harsh and excessive discipline of a 30 working day actual suspension to the Claimant without providing a fair and impartial Investigation and without meeting its burden of proving the charges in connection with an Investigation held on May 5, 2015. Carrier's File No. 09-00154. General Chairman's File No. Salto. BRS File Case No. 15466-SOO."
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.
Thomas Salto, hereinafter the Claimant, is employed as Signal Maintainer Paynesville, Minnesota, regularly assigned to working on Milepost 48 through Milepost 96 with work days Monday through Friday, 7:00 am to 3:30 pm with Saturday and Sunday as rest days. By letters dated April 27, 2015 and revised letter dated May 4, 2015, the Claimant was cited for formal Investigation and hearing to be held May 5th as follows:
"The purpose of the Investigation and hearing is to develop all facts and circumstances and place responsibility, if any, for your alleged dishonesty with regard to regulatory reporting and the S&C testing performed at Lakewood Dr. MP 75.44, 150th St. MP76.08 and TTT MP 76.56 on the Paynesville Subdivision on dates including but not limited to March 9th through April 7th 2015, in accordance with Rule 32 of the Collective Agreement between Soo Line Railroad and the Brotherhood of Railroad Signalmen. This may indicate a possible violation of the following rules, including but not nescessarily limited to:
GCOR Rule 1.6 Conduct
FRA Rule 234 Grade Crossing Signal Safety and State Action Plan
Red Book of S&C Requirements Section 9 - Inspection & Test Intervals Highway Grade Crossing Warning Systems"
Prior to the initial April 27th notice of formal Investigation, in a separate letter dated April 27, 2015 to the Claimant, Carrier referenced it had taken him out of service pending results from a hearing/Investigation regarding his alleged negligence and alleged dishonesty with regard to regulatory reporting and the S&C testing performed on dates including but not limited to March 9th through April 7th 2015.
By letter dated May 22, 2015, Carrier informed the Claimant that upon full consideration given to the Investigation/hearing, testimony indicated he was in violation of the following charge, to wit: Red Book of S&C Requirements Section 9Inspection & Test Intervals Highway Grade Crossing Warning Systems parts 9.3.2.j.iv and 9.3.2 k. In so finding, Carrier assessed the Claimant the discipline of an actual 30 working days suspension to begin April 28, 2015 through and including June 8, 2015.
In response to Carrier's decision to impose the discipline of an actual 30 working days suspension on the Claimant, the Organization filed the subject claim wherein, by claim letter dated June 24, 2015 it posited that the discipline assessed the Claimant violated Rule 32 (i) of the January 1, 1986 Controlling Agreement predicated on the basis that no substantial evidence was presented to show that the Claimant was guilty of alleged negligence and alleged dishonesty in connection with regulatory reporting and S&C testing performed on the specified dates of March 9 through April 7, 2015.
Rule 32 - Discipline and Investigation, Section (i) reads as follows:
"If it is found that an employee has been unjustly disciplined or dismissed, such discipline will be set aside and removed from the record. The employee shall be reinstated with all rights unimpaired including wage loss, if any, suffered by him resulting from such discipline or dismissal, less any amount earned in other employment during such period the disciplinary action was in effect."
The Organization further claimed Carrier also violated Rule 32 (c) of the Agreement by removing the Claimant from service on April 27, 2025. Rule 32 (c) reads as follows:
"An employee may be held out of service for serious offenses commencing with the dates of occurrence or with the next following workday pending Investigation and decision thereon."
The Organization argues the discipline assessed the Claimant was excessive given that the Claimant had no prior discipline on his work record over his nine (9) years of service with Carrier and that the Red Book infraction the Claimant was alleged to have violated did not warrant the suspension of thirty (30) working days unpaid time off. Rather, said Red Book infraction warranted at best, a coaching session between the Claimant and Manager in the field which would have been a better approach for both parties.
Carrier argues it has shown through the findings of the formal Investigation substantial evidence that the Claimant did not adhere to Red Book requirements in performing the duty of testing crossings on the given dates of March 9 through April 7, 2015, and, as a result, Carrier maintains the Claimant's failure to meet said requirements warrant the discipline assessed.
Upon an extensive review of the record evidence in its entirety and the respective arguments asserted by the Parties, the Board concurs that the Claimant failed to adhere to Red Book requirements in performing the duty of testing crossings on the dates of March 9 through April 7, 2015. Even so, we find that the Claimant did perform the duty of testing crossings successfully and that his only failing was to do so according to Red Book requirements. As such, we concur in the Organization's position that the quantum of discipline assessed the Claimant of an actual thirty (30) working days suspension without pay was harsh and excessive, not meant to be corrective in nature and should be reduced to a less severe penalty in conformance with progressive discipline. However, we do not agree with the Organization's position the discipline assessed should be reduced to a mere coaching. Finding the discipline administered to be harsh, excessive, and punitive the Board has through established longstanding arbitral authority the discretion to order Carrier to reduce the quantum of discipline to be commensurate with the offense committed. As such, we rule to follow progressive discipline and reduce the discipline to a Step 2 actual ten (10) working days suspension without pay. Accordingly, we further rule that Carrier reimburse the Claimant for twenty (20) of the thirty (30) working days he served on suspension including any overtime opportunity he may have worked except for the fact he was on suspension, that he be compensated for any loss of benefits suffered during the additional twenty (20) days he served on suspension and, additionally, that his work record be corrected to reflect the discipline assessed to be an actual ten (10) working days suspension for the infraction committed.
Notwithstanding the remedy we have ordered in favor of the Claimant, the Board impels the Claimant to follow and adhere to all Red Book required procedures going forward.
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 2nd day of May 2018.