THIRD DIVISION
Award No. 46478 Docket No. SG-46456
22-3-NRAB-00003-210311
The Third Division consisted of the regular members and in addition Referee
I. B. Helburn when award was rendered.
(Brotherhood of Railroad Signalmen PARTIES TO DISPUTE: (
(National Railroad Passenger Corporation (AMTRAK) STATEMENT OF CLAIM:
“Claim on behalf of the General Committee of the Brotherhood of
Railroad Signalmen on the National Railroad Passenger Corp. (Amtrak):
Claim on behalf of E.W. Thomas for reinstatement to his former position with all seniority and benefits unimpaired, compensation for all time lost, including overtime, and any mention of this matter removed from his personal record, account Carrier violated the current Signalmen’s Agreement, particularly Rule 57, when it issued harsh and excessive discipline of dismissal to the Claimant without providing him a fair and impartial investigation and without meeting its burden of proving the charges in connection with an investigation held on November 6, 2019. Carrier’s File No. BRS156862. General Chairman’s File No. AEGC # 20205. BRS File Case No. 16281- NRPC(S). NMB Code No. 106.”
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.
Maintainer Elton W. Thomas worked in the Carrier’s New York/Newark Division. At the time of the incident that resulted in his dismissal, the Claimant had waived a hearing and on December 4, 2018 accepted “the discipline of a Thirty (30) Calendar Day suspension All Served.” The waiver further stated that the Claimant understood “that this is a Final Warning/Counseling of impending dismissal for any additional violations for a period of 1 year.” On October 1, 2019 the Claimant was assigned to perform work in New York City in an area unfamiliar to him. He used his personal cell phone to get GPS directions. While traveling, he looked down at the cell phone resting on his right leg and when he looked up, had to brake abruptly because the vehicle directly in front of him had stopped suddenly. The hard braking triggered the DriveCam in the company vehicle, resulting in video evidence and a still shot of the Claimant looking at what admittedly was his cell phone.
On October 2, 2019, a DriveCam alert concerning the incident was e-mailed to Robert Lannon, Communication Manager, Engineering. Manager Lannon informed Susan Obey, who became the Charging Officer and signed the October 4, 2019 charge letter directing the Claimant to appear at the Amtrak Hearing Office in NYC for a 9:30 am formal investigation on October 28, 2019. The charge letter recounted the October 1, 2019 incident and charged the Claimant with violating the Carrier’s “Standards of Excellence,” sections labeled Safety, Cell Phone, Act Professionally, Attending to Duties and Follow the Rules. The Claimant was also charged with violating Rules Alert No. 2017-02 relating to the use of electronic devices and P/I 3.23.2 relating to the use of portable electronic devices.
After a postponement, Hearing Office Frances Krische conducted the investigation on November 6, 2019. By letters dated November 18, 2019, Hearing Officer Krische informed the Claimant of the conclusion that all charges had been proven and Director Engineering Christopher E. Forest informed the Claimant of his immediate dismissal. An appeal hearing on January 13, 2020 resulted in a denial of the appeal. Thereafter the Organization filed the above-noted timely claim on Maintainer Thomas’s behalf. The claim was properly progressed on the property without resolution and therefore was advanced to the National Railroad Adjustment Board for final and binding resolution.
The Carrier asserts that the DriveCam video provides substantial proof of all charges, which stand unrefuted. The Claimant did not raise mitigating factors during
the investigation. While no personal or property damage resulted, the violations could have resulted in damage. Rather than rely on his cell phone, the Claimant could have asked his supervisor for directions or googled directions. The dismissal constituted progressive discipline given the existence of the final warning. The Claimant’s case differs from the on-property cases cited by the Organization. The final warning resulted from an incident of workplace violence for which the Claimant could have been terminated, but the Carrier exercised leniency. The Organization now asks for leniency, which is the Carrier’s prerogative, not the Board’s, as established by prior awards. For all of these reasons the claim should be denied.
The Organization contends that the claim should be sustained because the dismissal was harsh and excessive, constituting disparate treatment when two on- property cell phone violations and one failure to report an accident are considered, as all resulted only in suspensions. The Claimant, with 29 years of service, avoided an accident. The final warning document was not produced. Prior awards support the contention that mitigation, progressive discipline and the use of consistent discipline must be considered.
The live Final Warning, often referred to as a Last Chance Agreement, does not eliminate the Carrier’s responsibility to prove the charges against the Claimant that he violated the prohibition against the use of a portable electronic device “while operating Amtrak-owned or leased vehicles . . .”—a prohibition found in one form or another in each of the documents referred to by the Carrier. The evidence of a violation is more than substantial. The still shot taken from the DriveCam video clearly shows the Claimant looking down at what is a partial view of his cell phone resting on his right leg. At no time either during the formal investigation or during the on-property progression of the claim has the Claimant or his representative disavowed the DriveCam evidence. Implicitly and explicitly there are admissions to the charges.
The Final Warning document, which is a part of the record, contains an unambiguous warning “of impending dismissal for any additional violations for a period of 1 year.” The Final Warning, of necessity, alters the Board’s calculus by substituting conditions set forth in that document for what otherwise might be consideration of mitigating and extenuating circumstances such as the Claimant’s 29 years of service and disparate treatment, as the Board’s consideration of mitigating elements would involve ignoring the Final Warning that the Claimant himself signed. The Carrier properly notes that leniency is a Carrier prerogative, which is not the province of the Board. The Board can understand the Organization’s characterization of the dismissal as “harsh and excessive,” but the dismissal, warned about in the Final
Warning is not of an arbitrary and capricious nature that would justify the substitution of lesser discipline.
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 29th day of July 2022.