THIRD DIVISION
Award No. 44643 Docket No. MW-45892
22-3-NRAB-00003-200386
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. T. Marquardt, by letter dated October 24, 2018, for violation of MWOR 1.23 Altering Equipment was on the basis of unproven charges, arbitrary, excessive and in violation of the Agreement (System File T-D- 5733-M/11-19-0148 BNR).
As a consequence of the violation referred to in Part (1) above, Claimant T. Marquardt 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 T. Marquardt has established and maintains seniority within the Carrier’s Maintenance of Way Department with tenure of approximately 4½ years and a clean disciplinary record. On August 6, 2018, then Foreman Marquardt was working at a grade crossing in the Allouez Yard, Superior, WI when a pin that apparently holds a star bit in the hydraulic impact socket that the Claimant was using broke. He flagged down a Traveling Mechanic who happened to be nearby, asked for a replacement pin and was given one from the Mechanic’s truck. The replacement pin was not flush with the tool, as the Carrier believes it should have been. A Mr. D. Pietsch, who was working with the Claimant, was somehow injured. The record does not indicate how the injury occurred or the extent of the injury. Following an investigation, discipline was assessed. The resulting claim was timely filed and properly processed without resolution so that it was progressed to this Board for final adjudication.
The Carrier asserts that the Claimant received a fair and impartial investigation during which the Claimant admitted installing the steel roll pin that held the bit in the socket. The admission is said to constitute the required substantial evidence because the use of the pin that was not flush amounted to an unauthorized alteration of the tool. The discipline, in accordance with the Policy on Employee Performance Accountability (PEPA), was not assessed because of Mr. Pietsch’s injury. The Organization asks for leniency, the prerogative of the Carrier, not the Board, which is not to substitute its judgment for that of Carrier management.
The Organization insists that the investigation was not fair and impartial. The Traveling Mechanic who gave the Claimant the replacement pin was not called as a witness. The Conducting Officer refused to accept the OSHA Fact Sheet concerning whistleblower protection proffered by the Organization. Foreman Marquardt’s violation was allegedly prejudged and the investigation occurred solely because of the injury. The Claimant has not admitted altering the tool and the Carrier has not produced evidence that the tool was modified. Therefore, the claim should be sustained to include compensation the Claimant lost on the day of the investigation.
The Claimant was disciplined for allegedly having been “careless of the safety of self and others,” language found in MWOR 1.6 Conduct, which was not included in the notice of discipline. The only MWOR listed in that notice is MWOR 1.23 Altering Equipment, that states: “Without proper authority, employees must not alter, nullify, change the design of, or in any manner restrict or interfere with the normal function of any device or equipment on engines, cars, or other railroad property, except in the case of an emergency. Employees must report to the proper supervisor changes made in an emergency.” Not only can the Carrier not charge the Claimant with a violation of an MWOR without specifically including that Rule in the notice of discipline, but also in this case the Carrier has not shown that the use of the oversize pin involved “carelessness of the safety of self or others.” While the record indicates that Truck Driver Pietsch was somehow injured during the day, the record is devoid of an explanation of how or why the injury occurred or the extent of the injury. In other words, there is no evidence that Mr. Pietsch’s injury was caused by the use of the so- called altered tool. The Carrier has not made a case for the inclusion of the “careless of. . .” language in the notice of discipline and the Board cannot find even substantial evidence of carelessness on the Claimant’s part.
Regarding MWOR 1.23, the Claimant obviously made a very minor alteration to the tool, but there is no evidence that the alteration interfered “with the normal function” of the hydraulic impact socket. In fact, it was the alteration that allowed continued use of the tool. This suggests an arbitrary, mechanistic, less-than-thoughtful application of MWOR 1.23.
Moreover, there are two procedural defects that also require a sustaining award. The first involves the refusal of the Conducting Officer to accept the OSHA Fact Sheet proffered by the Organization. Her rationale seemingly was that the documentation was not relevant to the question of whether or not the tool was altered. However, the Organization was defending the Claimant on a theory that he was being investigated only because of Driver Pietsch’s injury. The refused document was seen by the Organization as relevant to its defense of the Claimant. A fair and impartial investigation must allow a Claimant latitude to put on what is felt to be a relevant defense. Whoever the Carrier directs to decide whether discipline should be assessed has every right and responsibility to sort through the evidence adduced during the investigation and ignore what is believed to be inconsequential or irrelevant, but a Conducting Officer must be very careful when testimony and exhibits are offered on
the Claimant’s behalf during the hearing so as not to violate the fair and impartial dictate of Rule 40.A. as was done in this case.
The second procedural defect involves the Carrier’s failure to call as a witness the Traveling Mechanic who provided the oversized pin. In on-property Third Division Award No. 41785 the Board set forth the principle that a fair and impartial hearing requires that the Carrier, not the Organization, produce witnesses that can help develop all pertinent facts. Failure to call the Traveling Mechanic leaves a void. Did he know precisely what length pin was needed? Did he have the correct size pin or did he simply give the Claimant the first seemingly appropriate pin he pulled from his supply? Did the Traveling Mechanic and the Claimant even have a discussion about the proper pin? These two defects require a sustaining award.
The Standard Formal Reprimand must be expunged from the Claimant’s record. The work hours that the Claimant lost because of the investigation constitute a brief, unpaid suspension, requiring that the Claimant be made whole for the lost pay. Finally, if it is more likely than not that the Claimant would have performed overtime but for the investigation, he is to be compensated for the lost overtime work.
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.