THIRD DIVISION
Award No. 44642 Docket No. MW-45891
22-3-NRAB-00003-200385
The Third Division consisted of the regular members and in addition Referee
B. Helburn when award was rendered.
(Brotherhood of Maintenance of Way Employes Division - (IBT Rail Conference
(BNSF Railway Company (Former Burlington Northern (Railroad)
“Claim of the System Committee of the Brotherhood that:
The discipline [standard formal reprimand and a one (1) year review period] imposed upon Mr. G. Pladson, by letter dated November 7, 2018, for violation of MWOR 6.50.5 Hi-rail Limits Compliance System (HLCS) was on the basis of unproven charges, arbitrary, excessive and in violation of the Agreement (System File T-D-5739-M/11-19-0154 BNR).
As a consequence of the violation referred to in Part (1) above, Claimant G. Pladson shall have his record cleared of the charges leveled against him and he shall be compensated for all wage loss suffered including lost overtime, expenses and benefits.”
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.
Claimant Pladson has established and holds seniority within the Carrier’s Maintenance of Way Department with a heretofore clean disciplinary record since being hired on June 1, 1998. On September 24, 2018 the Claimant was operating a rotary grapple truck, hy-railing on the main line to dump rock for the Track Inspector on the Wayzata Sub. A Carrier Remote Audit Team determined that the thumbwheel element of the HLCS had not been activated. The Claimant testified that he tested the device before setting on the main line, had no indication that it was not working properly and after completing his work reported that he had set off the main line and had deactivated the HLCS. The finding of the Remote Audit team led to an investigation that in turn led to a conclusion that the Claimant had violated MWOR
6.50.5. Discipline was assessed, resulting in a timely filed and properly processed claim. The claim was not resolved on the property and therefore was progressed to this Board for final determination.
Based on the on-property correspondence, the Carrier insists that the investigation was fair and impartial and that the Claimant was not prejudged. There is no evidence that the Claimant activated the thumbwheel on the HLCS; thus, he violated 6.50.5, which is a serious safety violation. The assessed discipline, which could have been at Level S according to the Policy on Employee Performance Accountability (PEPA), was lenient as was the one (1) year review period rather than a three (3) year review period. Leniency is the prerogative of the Carrier, not the Board, which should not substitute its judgment for that of Carrier management.
The Organization contends that the investigation was not fair and impartial and that the Claimant’s due process rights were not honored. He was prejudged and received excessive discipline. The Carrier falsely stated the date that it had first knowledge of the alleged violation. The Employee Transcript, PEPA and MWOR
6.50.5 were either appended to the Carrier’s May 10, 2019 declination or, for the MWOR, set forth in the declination itself. Electronic Tech Olson, with knowledge of the problems with the HLCS device, should have been called as a witness by the Carrier. Not only did the Claimant comply with MWOR 6.50.5 but also the HLCS on the vehicle he was operating had previously been troublesome. The claim should be
sustained with an Order that includes make-whole for the hours lost on the day of the investigation.
The Carrier’s case fails because of a procedural defect and because of a failure to provide substantial evidence of a violation. The Claimant did not receive the fair and impartial investigation mandated by Rule 40.A. because the MWOR he was alleged to have violated was not made a part of the record during the investigation. The Carrier did not specify MWOR 6. 50.5 as the rule allegedly violated in the notice of investigation (NOI) but it is not required to list rules allegedly violated in the NOI as long as that notice contains sufficient detail to inform the affected employee and his or her representative what must be defended against at the investigation. The NOI provided the Claimant and the Organization sufficient detail. During the investigation Roadmaster Olson, when asked what MWOR 6.5.0 pertained to, responded “Uh
6.50.5 is a Hyrail Limit Compliance System Rule within our eight (sic) within our Maintenance of Way Operating Rules Book” (TR, p. 8, ll 24-25). Questions then turned to the Book of Rules in general, MWOR 6.50.5 was neither read into the record nor introduced as an exhibit and was not discussed further in any way whatsoever. There is little doubt in the Board’s mind that the Carrier ultimately became aware of the procedural failing because MWOR 6.50.5 was set forth in detail in the Carrier’s May 10, 2019 declination of the Organization’s appeal. For reasons detailed below, introduction of the allegedly violated rule at that stage of the proceedings does not cure the defect.
Third Division Award No. 42881 contains the rationale for requiring that the MWOR(s) allegedly violated be made a part of the investigation record.
In Third Division Award No. 42293, that Board wrote: “. . .during the course of the Investigation process the accused must know all of the charges and the reasons for the charges.” In numerous cases decided by this Board at the time this case was decided, we have written that with rare exception, a fair hearing must appraise the accused of the rules allegedly violated so that the accused has an opportunity to contest all or some of the alleged violations. While it may not be intended, omission of the rules during the hearing that ultimately become the basis for discipline is a form of trial by ambush. Moreover, without the rules allegedly violated in the record, the Board is deprived of the standards against which the accused’s conduct and the evidence of that conduct
must be assessed. See also Third Division Awards No. 42835 and No. 42836.
Mere mention of the rule during the investigation is insufficient. Neither the Claimant nor his representative should be put in a position of resorting to memory or experience to recall, if possible, the precise, relevant wording of the MWOR. And, because inclusion of the MWOR in the Carrier’s declination cannot be considered because it appeared outside of the investigation transcript and exhibits, neither can this Board be required by memory or experience, if possible, to conjure up the standard against which the Claimant must be judged. The Carrier’s violation of Rule
40.A. alone requires a sustaining award.
While there is no need to provide extended discussion, the Board concurs with the Organization that failure to call Electronic Tech Olson further deprived the Claimant of due process. A fair and impartial investigation places responsibility on the Carrier to ascertain all of the relevant facts and not simply to call witnesses selectively to elicit only facts weighing against the employee.
When considering the evidence, two elements of the case stand out. The Claimant testified that on September 24, 2018 he tested the HLCS, set on the main line and activated the HLCS, dumped rock, set off the main line and reported that he was clear, then deactivated the HLCS on his rotary grapple truck. Mindful of the conclusion of the Remote Audit Team, the Claimant’s testimony indicates that he proceeded as though he believed that the HLCS was operating properly. The possibility cannot be discounted or discredited out of hand because Electronic Tech Olson’s written statement establishes that on September 25, 2018 a trouble ticket was written that resulted in the replacement of the HLCS on October 8. Mr. Olson’s statement further notes that the HLCS on that rotary grapple truck had been replaced three times previously. In addition, Roadmaster Olson testified that HLCS units in 3- 4 other vehicles out of Willmar had also been replaced. The evidence compels this Board to give the benefit of the doubt to the Claimant, whose clean disciplinary record over his 20 years of service indicates that he has been a safe employee throughout his tenure.
In Public Law Board 7564, Award No. 16, an on-property award, the Board wrote that “The Carrier cannot send employees out with faulty equipment and then discipline for infractions of MOWORs that might have been due to equipment failure
rather than human failure.” See also the on-property Third Division Awards No. 41879 and No. 43692 as well as on-property Public Law Board 7048, Award No. 210.
The Carrier has not provided substantial evidence of a violation of MWOR
6.50.5 so that, assuming a fair and impartial investigation, a sustaining award is required. The Standard Formal Reprimand resulted in no loss of pay or benefits. Pay lost on the day of the investigation is, in essence, a brief suspension without pay that must be remedied with straight-time pay for the hours lost and pay at the overtime rate for overtime, if any, that the Claimant in all likelihood would have performed but for the investigation.
Claim sustained.
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 15th day of December 2021.