Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 44239 Docket No. MW-44613
20-3-NRAB-00003-180007
The Third Division consisted of the regular members and in addition Referee Patricia T. Bittel when award was rendered.
(Brotherhood of Maintenance of Way Employes Division (IBT Rail Conference
(BNSF Railway Company (Former Burlington Northern (Railroad Company)
“Claim of the System Committee of the Brotherhood that:
The Carrier violated the Agreement when it failed and refused to schedule and hold an unjust treatment hearing as requested by the Organization on May 3, 2016 concerning the Carrier's disqualification of Mr. M. Chrisco from a regulator operator position on Gang SC54 (System File B-M-2957-E/11-16-0361 BNR).
As a consequence of the violation referred to in Part (1) above, Claimant M. Chrisco shall ' ... receive eight (8) hours of straight time, at the respective rate of pay for each day the violation continues or until the disqualification is removed from Mr. Chrisco' s record.”
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.
By letter dated May 3, 2016 the Organization formally requested that an unjust treatment hearing be held in accordance with Rule 62 regarding the Carrier's disqualification of the Claimant, an RSG Regulator. The request was received by Roadmaster H. Green. The Carrier never scheduled the hearing, but took the position that Rule 62 does not allow the Organization to file a request for an unjust treatment hearing on behalf of an employe.
Applicable provisions of the parties’ Agreement state as follows:
RULE 40. INVESTIGATIONS AND APPEALS
An employe in service sixty (60) days or more will not be disciplined or dismissed until after a fair and impartial investigation has been held. Such investigation shall be set promptly to be held not later than fifteen (15) days from the date of the occurrence, except that personal conduct cases will be subject to the fifteen (15) day limit from the date information is obtained by an officer of the Company (excluding employes of the Security Department) and except as provided in Section B of this rule.
* * *
A decision shall be rendered within thirty (30) days following the investigation, and written notice thereof will be given the employe, with copy to local organization's representative. If decision results in suspension or dismissal, it shall become effective as promptly as necessary relief can be furnished, but in no case more than five (5) calendar days after notice of such decision to the employe. If not effected within five (5) calendar days, or if employe is called back to service prior to completion of suspension period, any unserved portion of the suspension period shall be canceled.
The employe and the duly authorized representative shall be furnished a copy of the transcript of investigation, including all statements, reports, and information made a matter of record.
* * *
H. The provisions of Rule 42 shall be applicable to the filing of claims and to appeals in discipline cases. [See Appendix JJ for alternative expedited arbitration procedures]
* * *
RULE 62. UNJUST TREATMENT
An employe who considers himself unjustly treated in matters other than discipline, or in matters other than those arising out of the interpretation and application of the rules of this Agreement, shall have the same right of hearing and appeal as provided in Rule 40, if written request is made to his immediate superior within twenty (20) calendar days after the date of the occurrence of the cause for complaint.”
The Carrier contended that the Claimant never properly requested an unjust treatment hearing in accordance with Rule 62 because it was the Organization representative who filed the request on behalf of the Claimant, and not the Claimant himself.
The Organization maintains Rule 62 contains no such requirement and argues the Carrier should not be permitted to insert conditions into the Agreement which were not negotiated. In Award 35916, a grievant was a disqualified Machine Operator whose right to an unjust treatment hearing was affirmed. In Third Division Award 35916, the point of contention was the person to whom the request was made, with no objection from the Carrier to the fact that the request was made by the Organization. The Organization provided statements from its representatives who had filed for unjust treatment hearings on behalf of employees without objection from the Carrier.
On May 3, 2016, Representative Shawn Ellestad requested an unjust treatment hearing on behalf of the Claimant. On May 6, 2016, Roadmaster Henry Green sent a letter to Ellestad explaining that a hearing must be requested by the employe. This letter also stated “if Mr. Chrisco desires an unjust treatment hearing he should file his written request” with Roadmaster Green.
The Carrier argues that after numerous exchanges between Labor Relations and Ellestad, it was abundantly clear that the Claimant only needed to send an email requesting a hearing to Roadmaster Green by the end of the day on May 6, 2016, and the hearing would be scheduled. On that same day the Claimant apparently sent an e-mail at 1935 hours to Ellestad requesting a hearing, but not to Roadmaster Green. The Carrier maintains an unjust treatment hearing was never scheduled because the Claimant failed to properly request it. It argues the plain language of Rule 23C is unequivocal in its requirement that an employee make the request. The Claimant’s supervisor, however, agreed to extend the Claimant’s opportunity to request the hearing an additional day, an overture that the
Claimant and Ellestad rejected. The Carrier notes that Rule 42 uses the language “by or on behalf of the employe involved,” making it clear that the parties’ made their intent clear when the Organization could act on behalf of the employe. Since no such language is found in Rule 62, the Carrier insists none should be implied.
The Carrier also notes the case is moot because the Claimant has since been requalified as a Ballast Regulator Operator and worked in this position starting December 6, 2016. It further contends that the requested remedy of qualification reinstatement runs counter to the Carrier’s fundamental right to determine qualifications.
We find the language at issue to be clear and unambiguous. As such, prior practices or oral understandings have no import. The right to an unjust treatment hearing upon timely written request is expressly given to the individual employe. The argument of the Carrier - that the parties specified the filing rights of the Organization where they were recognized – is persuasive. Further, this restriction was clearly and timely communicated to the Claimant without response.
Claim denied.
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 23rd day of October 2020.