Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 43079 Docket No. MW-44318 18-3-NRAB-00003-170381
The Third Division consisted of the regular members and in addition Referee Peter R. Meyers when award was rendered.
(Brotherhood of Maintenance of Way Employes Division (IBT Rail Conference
PARTIES TO DISPUTE: (
(National Railroad Passenger Corporation (Amtrak) (Northeast Corridor
STATEMENT OF CLAIM:
"Claim of the System Committee of the Brotherhood that:
(1) The discipline (dismissal) imposed upon Mr. D. Cerrito by letter dated September 15, 2016 was arbitrary, unwarranted and in violation of the Agreement (Carrier's File NEC-BMWE-SD-5458D AMT).
(2) As a consequence of the violation referred to in Part (1) above, the Carrier shall rescind the aforesaid dismissal decision and Claimant D. Cerrito shall be reinstated to service immediately with full seniority unimpaired and compensated for all lost wages and benefits resulting from his improper termination."
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. 43079 Docket No. MW-44318 18-3-NRAB-00003-170381 Parties to said dispute were given due notice of hearing thereon.
By notice dated August 30, 2016, the Claimant was directed to attend a formal Investigation and hearing on charges that the Claimant allegedly had violated Carrier rules by allegedly making a post to social media that was defamatory and discriminatory toward the Carrier and one of its employees. The Investigation was conducted, as scheduled, on September 7, 2016. By letter dated September 15, 2016, the Claimant was informed that he was being dismissed from the Carrier's service after being found guilty as charged. The Organization filed the instant claim on behalf of the Claimant, challenging the Carrier's decision to discipline him. The Carrier denied the claim.
The Carrier contends that the instant claim should be denied in its entirety because the Claimant was afforded a fair and impartial Investigation, because substantial evidence establishes that the Claimant is guilty as charged, because there is no merit or mitigating value to the Organization's arguments, because the requested remedy is inappropriate, and because the discipline imposed was commensurate with the proven offense and was not arbitrary, capricious, or excessive. The Organization contends that the instant claim should be sustained in its entirety because the Carrier failed to meet its heightened burden of proof on the charges involving moral turpitude, because the Carrier failed to connect the Claimant's private social media activity to the Carrier or its employees, because the Carrier did not prove that the Claimant's off-duty conduct had any impact upon its business and operations, and because the discipline imposed was unwarranted and in violation of the Agreement.
The parties being unable to resolve their dispute, this matter came before the Board.
The Board has reviewed the evidence and testimony in this case, and
we find that the Carrier has failed to meet its burden of proof that the
Claimant violated any Carrier rules when he off-duty posted on his personal
page and computer things to the social media site Facebook. The
Claimant was clearly making negative statements, but the nexus
between those negative statements and his job or his fellow employees
was simply not proven by the Carrier. The Carrier failed to tie the
Claimant's social media activity to the Carrier or its employees.
Award No. 43079 Docket No. MW-44318 18-3-NRAB-00003-170381 It is fundamental that in order to bring discipline against an employee, the Carrier must meet its burden of proof with sufficient evidence that the employee did something in violation of the Carrier's rules. In this case, the Claimant was off duty when he was making the post to social media and the nexus between those posts and his job was simply not proven by the Carrier.
Since the Carrier failed to meet its burden of proof in this case, the Board has no choice other than to sustain the claim. However, in light of award number Award No. 43078, the remedy is denied.
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.
CARRIER MEMBERS' DISSENT
to
THIRD DIVISION AWARD 43079 - DOCKET 44318
(Referee Peter Meyers)
The Carrier dissents to this Board's findings in the above-referenced matter. The
Carrier proved violations of the Standards of Excellence with Claimant's
discriminatory social media remarks regarding a fellow employee, and established
a nexus with the workplace because the posts were public and visible to other
employees and targeted an identifiable individual. Thus, I respectfully dissent.
May 2, 2018
Matthew R. Holt Matthew R. Holt