THIRD DIVISION
Award No. 44745 Docket No. MW-46526
22-3-NRAB-00003-210260
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 STATEMENT OF CLAIM:
“Claim of the System Committee of the Brotherhood that:
The discipline [Level S thirty (30) day record suspension and a three (3) year review period] imposed upon Mr. D. Martin, by letter dated October 1, 2019, for violation of MWOR 1.10 Games, Reading or Electronic Devices was on the basis of unproven charges, arbitrary, excessive and in violation of the Agreement (System File S-P-2327-G/11-20-0080 BNR).
As a consequence of the violation referred to in Part (1) above, Claimant D. Martin’s discipline must be removed or reduced from his personal record and he shall be made whole for all his losses including overtime and all 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.
Following a triggering incident on July 24, 2019, the Carrier reviewed a Drive Cam video which purported to show the Claimant handling an electronic device operating BNSF Vehicle 27759.
At issue in this case is Maintenance of Way Operating Rule 1.10 which states as follows in pertinent part:
1.10 Games, Reading, or Electronic Devices
While driving a BNSF owned or rented vehicle (off rail), do not:
Handle cellular telephones or similar hand-held electronic devices. Use of such devices is limited to hands-free mode with no more than a single touch to dial, answer or activate voice commands.
Manually enter or read text from cellular telephones or similar hand- held electronic devices (e.g. emailing, text messaging, social media, accessing a web page, etc.).
Use notebook computers, laptops or similar devices. Display screen of such devices capable of being closed must be closed. Devices not capable of closing the screen must be turned off. (Emphasis added.)
Position of Organization:
In the Organization’s view, the Claimant was denied a fair and impartial hearing because the hearing officer prejudged the case. Furthermore, the Carrier attempted to introduce new evidence after the investigation but during the on- property handling of the case, an action which the Organization deems utterly inappropriate.
It cites Award 39919:
In deciding whether or not the Claimant committed the charged offense, the Board is restricted to evaluation of the evidence submitted at the
Investigation. The Board cannot consider the testing documents because they were untimely introduced subsequent to the Investigation. The Claimant had no opportunity to rebut the documents or to examine their accuracy.
The Organization makes four points: First, is the fact that the Claimant simply glanced at the phone in order to see if it was the Roadmaster calling him back. Second, is the fact that the Claimant never answered the call and instead pulled over on the side of the road in a safe and careful manner and did not call the Roadmaster back until the vehicle was completely stopped. Third, is the fact that the “event” activating the Drive Cam was simply the Claimant’s intentional braking action as he pulled the vehicle over to the roadside. While doing so, he was not handling the device. Fourth, is the fact that holding a cell phone does not violate Carrier rules.
Position of Carrier:
DriveCam showed the Claimant picking up his cell phone from the center console and looking down at it while traveling at approximately 50 mph. This violation occurred despite the fact the Claimant was well aware of the BNSF prohibitions against handling electronic devices in this manner while operating a vehicle.
When confronted with this evidence at his investigation, the Claimant admitted to handling his phone while driving a company vehicle. The Carrier maintains that where there is an admission of guilt, it has met its burden of proof.
It cites PLB 7564 Award 61 holding that a claimant was distracted even though he was not communicating with his phone and was traveling at a slow rate of speed, noting that he was paying less than absolute attention.
The applicable rule in this case forbids “handling” a phone while driving, apart from a single touch while using hands-free mode. The Rule also forbids reading text. The Claimant asserts he simply looked down at the phone to see who was calling. The Carrier insists that looking down at a phone while driving 50 mph constitutes inattention in violation of safety regulations.
We find the Carrier’s concern about the Claimant’s inattention was well founded. A reasonable employe would understand the applicable rule to prohibit
holding a phone. It references “a single touch to dial, answer or activate voice commands.” Holding a phone in one’s hand cannot be squared with a single touch, which is reasonably understood as the touch of a finger. Further, reading the name of the caller is indistinguishable from reading text. The Claimant was looking down while holding his phone. His attention was drawn away from the road at a relatively high speed. The Carrier had sufficient basis to impose the discipline selected.
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 6th day of May 2022.