Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD

THIRD DIVISION

Award No. 43403 Docket No. SG-44304 19-3-NRAB-00003-170388

The Third Division consisted of the regular members and in addition Referee Andria S. Knapp when award was rendered.

(Brotherhood of Railroad Signalmen PARTIES TO DISPUTE: (

(Illinois Central Railroad Company

STATEMENT OF CLAIM:

"Claim on behalf of the General Committee of the Brotherhood of Railroad Signalmen on the Canadian National (formerly Illinois Central):

Claim on behalf of T.F. Swoyer, for reinstatement to service with compensation for all time lost, including overtime, with all rights and benefits unimpaired, including travel allowances and meals, and with any mention of this matter removed from his personal record, account Carrier violated the current Signalmen's Agreement, particularly Rule 35, when it issued harsh and excessive discipline of dismissal against 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 March 15, 2016. Carrier's File No. IC-BRS-2016-00004. General Chairman's File No. IC-00316. BRS File Case No. 15568-IC."

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.

At the time of the events that resulted in his dismissal from service, the Claimant, T. F. Swoyer, was a Signal Maintainer for the Carrier, working as a truck driver on a Maintenance gang. Because their job duties may require them to operate heavy-duty trucks and equipment, Signal Maintainers are required to maintain a valid commercial driver's license (CDL). According to the Claimant, he received an e-mail from his supervisor, Shannon Goins, in early January 2016, informing him that he had thirty days to renew his driver's license, which was due to expire on February 3, 2016. On Friday, January 22, 2016, the Claimant went to the Minnesota Department of Motor Vehicles, where he was informed that due to a previously expired medical card and a recent change in Minnesota law, his CDL had been downgraded. When the Claimant returned to work on Monday, January 25, 2016, he informed Supervisor Goins that he needed to borrow a truck to take a test for his driver's license. According to the testimony of the Claimant at the hearing, he informed Goins that his CDL had been downgraded and he needed to use a truck to take a test to bring it current. The Claimant testified that his foreman was off that day, and following their conversation, which took place with two other individuals in the area, Goins told him to take one of the Carrier's boom trucks, a commercial vehicle, to assist with the repair of a broken rail. His foreman was back at work on January 26 and 27. Goins' testimony is different. According to Goins, the Claimant did not tell him on January 25, 2016, that he no longer had a valid CDL, only that he needed to use a truck to renew his license. The next day, Tuesday, January 26, the Claimant informed him that he also needed to take a written test for his driver's license. Goins thought that having to take both tests sounded unusual, and he decided to check on the status of the Claimant's commercial license. According to Goins, it was Wednesday, January 27, 2016, when he instructed the Claimant to operate the boom truck to assist in the repair of the broken rail. Whether it was January 25 or January 27, the Claimant did not protest and drove the truck as assigned. Later on January 27, Goins spoke to Patsy Borum in commercial fleet management to ask about the Claimant's CDL status. Initially, Borum told Goins that the Claimant's CDL was valid; after digging deeper into his records, she reversed that opinion. Goins then drove to the Claimant's work site and took him out of service pending Investigation.

On Thursday, January 28, 2016, Ms. Borum e-mailed Goins to confirm that the Claimant did not have a valid current CDL. The record includes a copy of a printout of a Driver's History Verification Report that was ordered by the Carrier on January

11, 2016, and printed out on January 12, 2016. ⁽¹⁾The Report indicates that the Claimant possessed a valid driver's license (D-D-Operator); it does not indicate that he had a commercial driver's license.

By letter dated February 5, 2016, the Carrier notified the Claimant of an Investigation to determine whether he had violated any Company rules by allegedly driving a Carrier commercial vehicle without a valid or current CDL on January 27, 2016. The investigative hearing was held March 15, 2016. At the hearing, the Claimant explained that he had been with the Carrier for four and one-half years but in his position as Signalman/Truck Driver for only two months. Previously, he had been working as a Signal Supervisor and he had allowed his CDL to lapse because he did not need it. Under a new Minnesota law, if a CDL expires, the driver cannot simply renew it, but has to take both the written and driving tests all over again. The Claimant testified that he had not received notice from the state of Minnesota that his CDL had lapsed because he was living in Illinois and any notices would have been sent to the address on his Minnesota license, which he had rented out. No notice was forwarded to him. The Claimant further testified that when he went from being a Signal Supervisor back to being a Truck Driver, in November or early December 2015, he notified CN Commercial Fleet that he did not have a current medical card and needed to get one to renew his CDL. He worked with Patsy Borum at that time. After he upgraded and submitted his medical card, he asked Ms. Borum if he was "good to drive" and she told him that he was. He was not aware that he needed to retake the written and driving tests for the CDL again, and Borum said nothing to him about his CDL having been downgraded or needing to take the tests again.

By letter dated March 25, 2016, the Carrier notified the Claimant that he was found guilty of the charges against him, specifically that he had violated USOR H and USOR 100 and that the penalty was dismissal. The Union filed a timely claim. The parties having been unable to resolve the dispute through the grievance procedure, it was moved to the Board for a final and binding determination.

According to the Carrier, substantial evidence establishes that the Claimant did drive a Carrier commercial vehicle without a valid CDL and without having notified his supervisor that his CDL had lapsed. The Claimant acknowledged his actions, which violated USOR H and USOR 100. The Investigation was fair and unbiased, and the penalty assessed was reasonably related to the seriousness of the charges. The Claimant's testimony that he told his supervisor that his CDL has lapsed was not credible. The Claimant did not inform his supervisor that his CDL was no longer valid, and when instructed to drive a commercial vehicle, he did so without saying anything about his CDL. He deliberately violated the rules. The Claimant had doubts that he had a valid CDL and failed to raise his concern and/or the fact that he was illegally driving a Carrier commercial vehicle to the proper authority. He was clearly in violation of USOR H by failing to divulge pertinent information to his supervisor about his downgraded CDL. He exhibited gross negligence and willful neglect by choosing to operate a vehicle illegally. The Claimant's carelessness and neglect could have resulted in dire results for the Carrier and others, had he gotten into an accident.

The Organization contends that the Claimant's actions when he drove the boom truck did not violate USOR H or USOR 100. Both rules are broad, which lends them to some managerial discretion. When the Claimant operated a Carrier commercial vehicle without a valid CDL, he did so at the direction of his supervisor, who was cognizant of the downgraded CDL. He was simply following instructions given to him by his supervisor, as failure to comply would have certainly resulted in discipline. The Claimant cannot be viewed as negligent, careless or insubordinate, as he immediately informed Mr. Goins of his downgraded CDL, to the steps necessary to remedy the issue, and followed his supervisor's instructions. There is no evidence that the Claimant was dishonest at any time, during the incident or at the Investigation. Mr. Goins' testimony that the Claimant did not inform him of the status of his CDL is not credible. There were bystanders who heard the conversation. Much of his testimony was inconsistent and contradictory, with significant gaps in his recollection of what happened and when. No one could read his testimony and ascertain what actually occurred. The Carrier's decision to discipline the Claimant was based on this conflicting testimony and it must not be permitted to stand. The Carrier failed to meet its burden of proof, and its decision to impose dismissal is an abuse of discretion. The Claimant's infraction was minimal and a much lesser penalty is warranted.

While certain details are less than clear (such as the exact date of the incident), the evidence is undisputed that the Claimant drove one of the Carrier's commercial vehicles knowing that he did not have a valid current commercial driver's license; Mr. Swoyer acknowledged that himself in his testimony at the investigative hearing. The real issue here is what impact, if any, the surrounding circumstances should have on the Carrier's determination that the Claimant violated USOR H and USOR 100 and that the appropriate discipline was dismissal. USOR Rule H states, in pertinent part:

"Furnishing Information and Conduct. Dishonesty, disloyalty, insubordination, willful neglect, gross carelessness, desertion from duty, making false reports or statements, concealing facts concerning matters under Investigation, immoral conduct including but not limited to conduct of any employee leading to the conviction of any felony and serious violations of the law are prohibited . . .

'USOR Rule 100 states, in pertinent part:

Employees must be familiar with and obey all rules, regulations and instructions. . . . Employees must cooperate and assist in carrying out the rules and instructions. They must promptly report any violations to the proper supervisor."'

The Claimant was not aware until Friday, January 22, 2016, that his CDL was no longer valid and that he would have to take both the written and driving tests again to reinstate it. ⁽²⁾He testified that when he returned to work on Monday, January 25, he immediately notified his supervisor of the problem; Supervisor Goins disputed that, testifying that the Claimant only told him that he would need to borrow a commercial truck to take the driving test. The Carrier contends that the Claimant was not as straightforward with his supervisor as he should have been about the state of his CDL. According to the Organization, the supervisor's testimony was inconsistent and contradictory at best, as a result of which the Carrier has failed to carry its burden of proof.

Having reviewed the entire record, the Board finds that there was miscommunication and confusion on both sides. If anything, this case demonstrates the extent to which what one means to say is not necessarily what the listener hears. The Claimant testified that he told Goins about the CDL problem first thing when he reported to work Monday morning; it certainly appears that he honestly believed that he did. The record suggests that Goins, on the other hand, had his hands full that morning, not only with the normal start-of-the-week tasks, but in addition, the

Claimant's foreman was absent and Goins was having to deal with assigning the Claimant's crew and overseeing their work for the day. So the extent of Goins' understanding of the Claimant's problem remains ambiguous. It is also not clear that Goins actually instructed the Claimant to drive one of the commercial vehicles. Goins testified that he told the Claimant to go to the work site with one of the maintainers; another witness testified that he heard Goins telling the Claimant "Just go and do your job duties." Nor does the record indicate whether there were non-commercial vehicles available for the Claimant to drive to the work site.

In the end, the evidence is sufficient to conclude that the Claimant violated USOR 100 when he knowingly drove a commercial vehicle without a commercial driver's license. The evidence is not sufficient to conclude that he intentionally violated USOR H or was dishonest, or otherwise guilty of gross carelessness or willful neglect.

As for the violation of USOR 100, the Grievant was between the proverbial rock and hard place in terms of getting to the day's work location: he could drive one of the commercial vehicles there knowing that his CDL was no longer valid, or he could refuse to do so and risk being disciplined for insubordination for failing to follow his supervisor's directions. If Goins did know, or even have an inkling, that the Claimant's CDL was not valid, he should not have instructed him in any manner that would require the Claimant to have to operate a commercial vehicle.

Considering the matter as a whole, there was a failure adequately to communicate on both sides. The Claimant must bear some responsibility for having operated the boom truck without reminding his supervisor of his CDL status. Given Goins' acknowledged suspicions about that status and his assigning the Claimant in a way that required him to operate a commercial vehicle, the Claimant's conduct was not sufficient to warrant dismissal. He shall be returned to work with seniority and benefits, but not back pay.

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 18th day of January 2019.

1. According to the Carrier, the report was the result of a random background check.

2. The Claimant's testimony regarding his efforts to determine with fleet management the state of his CDL in late November or early December 2015, when he returned to driving a truck from a prior supervisory position, was credible. There is no evidence in the record to suggest that he was aware of any problem before he went to the Minnesota DMV on January 22, 2016.