Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD

THIRD DIVISION

Award No. 43117 Docket No. SG-43025 18-3-NRAB-00003-150235

The Third Division consisted of the regular members and in addition Referee Edwin H. Benn when the award was rendered.

(Brotherhood of Railroad Signalmen PARTIES TO DISPUTE: (

(Kansas City Southern Railway Company

STATEMENT OF CLAIM:

"Claim on behalf of the General Committee of the Brotherhood of Railroad Signalmen on the Kansas City Southern Railway Company:

Claim on behalf of T. A. Hogan, for reinstatement to service with all rights and benefits unimpaired, compensation for all lost wages, including overtime and skill pay, and any mention of this matter removed from his personal record, account Carrier violated the current Signalmen's Agreement, particularly Rule 47, when it issued the harsh and excessive discipline of dismissal to the Claimant without providing him a fair and impartial Investigation and without meeting its burden of proving the charges in connection with an Investigation held on January 25, 2014. Carrier's File No. K0614-4209. General Chairman's File No. 14-004-KCS-185. BRS File Case No. 15115-KCS."

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.

After Investigation held January 25, 2014 and by letter dated February 4, 2014, the Claimant - a Signal Maintainer in the Carrier's service for approximately 15 years - was dismissed for failing to notify the Carrier within 48 hours of his being arrested and charged with driving under the influence.

On February 22, 2012, the Claimant tested positive for alcohol and was dismissed on March 23, 2012. On March 30, 2012, the Claimant signed a Companion Agreement electing to participate in the Carrier's Rule 1.5 Rehabilitation and Education Prevention Program. The Companion Agreement letter signed by the Claimant indicated that he waived investigation on the Notice of Dismissal.

The Companion Agreement set forth conditions including (at paragraph 1) the Claimant's participation in the R/E Program for a period of up to 60 months (at the discretion of an Employee Assistance Counselor) which included random followup and drug testing for that period. Paragraph 1 of the Companion Agreement also provided that "[i]f you test positive in a random, follow-up drug and alcohol testing, you shall revert to a dismissed status ...." Paragraph 3 of the Companion Agreement provided for an evaluation by the EAP Counselor and "[i]f the evaluation indicates that you may safely be returned to service, you shall be returned to service on a probationary basis, with all seniority unimpaired .... [but f]ollowing your return to service, you must follow the course of treatment established by the counselor during the remainder of the Program." Paragraph 4 of the Companion Agreement provided if the EAP Counselor determined that the Claimant could not be safely returned to service, "... you will continue in the status of a dismissed employee until subsequent evaluation(s) indicates that it is safe to return you to service on a probationary basis."

On April 30, 2012, the Claimant was returned to work. Tr. 18.

The Claimant testified that on August 29, 2012, he tested positive on a random breathalyzer test. Tr. 10. However, according to the Carrier, there was a procedural error in the administration of the test "... so the test wasn't valid." Tr.

20.

By a September 6, 2012 Letter of Understanding ("LOU"), the Carrier, the Organization and the Claimant agreed:

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"On August 29, 2012 you were given a random breath alcohol test for which you screened positive for alcohol. Due to a procedural error the confirmation test was ruled invalid. However, due to the safety nature of the position you held (i.e., driving company equipment), the Carrier and the Brotherhood of Railroad Signalmen have mutually agreed to temporarily remove you from the Signal Maintainer position you currently hold for a period of six (6) months to ensure that you are reevaluated and reassessed by the Carrier's Substance Abuse Professional (SAP) and compliant with any course of treatment that you must follow. You will continue to be bound by the terms and conditions of the Companion Agreement that you executed on March 30, 2012. During the interim six month period, you will be reassigned to a Signalman position and the Carrier will bulletin your Signal Maintainer position as a temporary vacancy. At the end of the six (6) month period and concurrence by the SAP that you are compliant with the course of treatment proscribed, you will be allowed to return to the Signal Maintainer position.

... By signing and dating in the space provided below, you acknowledge that you have read the above terms and conditions and have had the opportunity to consult with your union representative."

The Claimant's status was changed to a Leave of Absence Medical effective August 29, 2012 until he was cleared by Medical. The Claimant returned to work as of June 28, 2013. Tr. 18-20; Carrier Investigation Exhibit 5. The Claimant testified that his first day back was July 9, 2013, eventually transferring to his prior position of Signal Maintainer as of January 12, 2014. Tr. 10-11.

On February 2, 2013 - after his invalidated breathalyzer test on August 29, 2012 and the signing of the September 6, 2012 LOU, but prior to his return to work as of June 28, 2013 under the terms of the September 6, 2012 LOU - the Claimant was charged with driving while intoxicated, with a following conviction on April 11, 2013 (the Claimant's blood alcohol concentration level showed .272). Tr. 7-8; Carrier Investigation Exhibits 2, 3.

The Claimant did not notify the Carrier of his arrest within 48 hours of his February 2, 2013 arrest for driving while intoxicated. Tr. 8-12.

Rule 1.6.4 provides:

"Notification of Criminal Charges

Any employee charged with a crime involving any of the following is required to report the situation within 48 hours to the Operation Support Administrator [phone number given]. The report of the situation shall include the employee's name, identification number, job title and work location. In regard to the criminal charges, the employee must report the crime(s) that s/he has been charged with committing, the date of the criminal charge(s), the circumstances leading to the charge(s) and the jurisdiction(s) where the criminal charge(s) are pending.

Operating a motor vehicle while under the influence of, or impaired by, alcohol or a controlled substance or refusal to undergo testing to determine whether s/he was operating a vehicle under the influence of alcohol or a controlled substance."

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Clearly, the Claimant violated Rule 1.6.4 when he failed to report the February 2, 2013 arrest for driving while intoxicated within 48 hours as required by that rule.

The Organization's arguments do not change the result.

First, the Organization argues that the Claimant was not obligated to report the February 2, 2013 arrest because, at the time of the arrest, the Claimant was not working and was in a "dismissed" status under the terms of the March 30, 2012 Companion Agreement. The problem with that argument is that the September 6, 2012 LOU agreed to by the Carrier, the Organization and the Claimant after the Claimant tested positive for alcohol on August 29, 2012, which the test was invalidated due to a procedural error, provides in no uncertain terms that for the six month evaluation period provided for in the LOU, "[d]uring the interim six month period, you will be reassigned to a Signalman position ...." The February 2, 2013 arrest occurred within that "interim six month period" after the September 6, 2012 LOU was agreed to. By agreement of the parties and the Claimant, under the terms of the LOU, the Claimant was a Signalman on February 2, 2013 when he was arrested for driving while intoxicated. Further, the evidence shows that the Claimant was on a leave of absence status when he was arrested. A "Signalman" on a leave of absence is not a "dismissed" employee. Rule 1.6.4 therefore applied to the Claimant as an "employee" and obligated the Claimant to report his February 2, 2013 arrest. The Claimant did not do so and was therefore in violation of that rule.

Second, nor would the fact that the Claimant testified that he did not contact the Carrier because, when he returned to work on July 9, 2013, "I had talked to Mr. Ricky Briggs that morning ... management of KCS and Instructor on our safety rules and qualifications ... I had give him what happened, explained the situation, what had happened to me as far as getting a DUI and everything that went down, because I was unsure of how to go about it ... [a]nd he asked me various questions and at the end of it he had stated that you shouldn't have to call because the DUI will not affect your job performance on the railroad; it doesn't have any affect ... [a]nd I was dismissed at the time; I was not employed as an employee during the time of responsibility ... [and Briggs stated] there's no need to report it because it doesn't affect you ... [y]ou were off during the time it happened so it shouldn't matter to the Company." Tr. 11-12.

Manager Briggs did not testify to refute the Claimant's testimony concerning the comments attributable to Briggs. We therefore must accept those assertions as fact.

Again, the Claimant signed the September 6, 2012 LOU agreeing that "[d]uring the interim six month period, you will be reassigned to a Signalman position ..." and the evidence further shows that the Claimant was in a leave of absence status and thus was not "dismissed", but was an "employee" under Rule

1.6.4 for purposes of the 48-hour reporting period in that rule which began to run on February 2, 2013 when he was arrested and charged. But that aside, and giving the Claimant the benefit of the doubt that Manager Briggs even made those kinds of statements to the Claimant, by the plain terms of Rule 1.6.4 the Claimant was required to report his arrest "... to the Operation Support Administrator [phone number given]." Briggs was not the Operation Support Administrator to whom Rule 1.6.4 required the report be given. Briggs was a Manager in the Engineering Department. Tr. 21-22. By failing to report his arrest to the proper Carrier authority, the Claimant cannot rely upon his mentioning to Manager Briggs that he was arrested over five months after he was to make the report of the arrest to the Operation Support Administrator.

Third, with respect to the Claimant's advising Manager Briggs on July 9, 2013 of his February 2, 2013 arrest, which was over five months after the Claimant was obligated by Rule 1.6.4 to report his arrest, the Organization is really making an estoppel argument - i.e., that the Carrier should be precluded from relying upon Rule 1.6.4's reporting obligation because a Carrier manager allegedly advised the Claimant that he did not have to comply with the rule.

The problem with that argument is that for an estoppel to occur, there must be detrimental reliance by the Claimant on the statements made by Manager Briggs. Black's Law Dictionary (West, 5th ed.) defines estoppel as [emphasis added]:

"Estoppel" means that [a] party is prevented by his own acts from claiming a right to detriment of other party who was entitled to rely on such conduct and has acted accordingly. ... An estoppel arises when one is concluded and forbidden by law to speak against his own act or deed. ..."

See also, Second Division Award No. 13681 ("[w]here one party has lulled the other into thinking that clear language will not be enforced, then principles of estoppel and fundamental fairness require that the language cannot be applied ...").

What this means is that before the Claimant can assert estoppel, he must show that because of statements made to him by Manager Briggs, the Claimant relied upon Briggs' statements and therefore did not notify the Carrier within 48 hours of his arrest that he had been charged with driving under the influence. The Clamant cannot assert that the reason he failed to report his arrest was because Manager Briggs told him that he need not do so. The Claimant cannot make that assertion because the Claimant did not even tell Manager Briggs of his arrest until some five months after the Claimant was obligated to make the report under Rule 1.6.4.

Fourth, nor can this be considered a case of "condonation" - i.e., that an employee's misconduct is permitted because the Carrier knew of similar rule violations in the past where employees did not meet their reporting obligations under Rule 1.6.4 and took no action, but then applied the provisions of that rule to the Claimant. That doctrine is not applicable here to help the Claimant's position. There is no evidence that the Carrier failed to enforce Rule 1.6.4 against other employees. And, despite the Claimant's repeated assertions that he was not aware of his obligation to report his arrest, "[a]s to the presumed condonation ... it remains the case that employees are individually responsible for adhering to known rules of conduct." Third Division Award No. 32150. Rule 1.6.4 is a long-published rule (since May 2010 - see Carrier Investigation Exhibit 4) and the Claimant is charged with knowledge of that rule and its requirement that as an "employee" he must report arrests and criminal charges specified in that rule, which includes "[o]perating a motor vehicle while under the influence of, or impaired by, alcohol ..."). The Claimant did not do so and he therefore cannot claim that Manager Briggs - who was not the "Operation Support Administrator" designated in that rule - condoned the Claimant's failure to report his arrest.

Under the circumstances, dismissal was not arbitrary. The Claimant was previously reinstated under the terms of the Companion Agreement for a 60-month period from March 26, 2012 for alcohol-related misconduct; he was arrested for driving while under the influence of alcohol on February 2, 2013 and then convicted for that violation with an alcohol level of .272; and he failed to report that arrest as required by Rule 1.6.4. The Claimant's conduct when he was arrested and convicted was the same type misconduct (abuse of alcohol) which caused his previous dismissal. We cannot reinstate him.

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 30th day of May 2018.