THIRD DIVISION
Award No. 44769 Docket No. SG-46484
22-3-NRAB-00003-210013
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 S.S. Steffen, for 152 hours at his straight time rate of pay and 24 hours at the overtime rate of pay, and reimbursement for decontamination and inspection costs of his residence, account Carrier violated the current Signalmen’s Agreement, particularly Rule 57, when it removed the Claimant from service and required him to submit proof that his residence was not infested with bed bugs, and without providing him a fair and impartial investigation on March 21, 2019. Carrier’s File No. BRS-156973-TC. General chairman’s File No. AEGC-201919. BRS File Case No. 16245-NPRC(s). NMB Code no. 155.”
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.
The Claimant was an Assistant Foreman assigned to the C&S Trouble Desk at the Consolidated National Operations Center (CNOC) in Arlington, DE. Management became aware of a bed bug problem in the BRS Trouble Desk office within the CNOC—a problem that continued and spread elsewhere in the facility. A March 12, 2019 canine inspection identified an infestation in a gym locker identified by the Claimant as his. He also acknowledged an infestation in his then current residence, which he said had been heat treated the previous weekend.
By letter dated March 22, 2019 Joshua Kessler, Division Engineer Mid Atlantic wrote the Claimant that the bed bug problem continued despite extermination efforts at his work location, with a second inspection again identifying the Claimant’s locker as the source. Therefore, “to protect public health. . .” the Claimant “was being held out of service due to being deemed unfit for duty.” The Claimant was offered the opportunity to use accrued vacation to maintain his pay and told that the Carrier would “need evidence of your remedying your personal health situation” in order to return to work.
Nothing in the record indicates that the Claimant produced evidence that his then current residence was free of infestation. While the Claimant was out of service, he moved to a different residence. He was reinstated on April 16, 2019 upon presentation of evidence that his new residence was free of bed bugs. He had not used vacation entitlements. The above-noted timely claim was filed on the Claimant’s behalf on April 18, 2019. The claim was properly progressed on the property without resolution and, therefore, advanced to the National Railroad Adjustment Board for final and binding adjudication.
The Organization alleges a violation of Rule 57-Discipline and Appeals, parts (a), (b) and (m) because the Claimant was withheld from service, not provided a formal investigation and not compensated for lost time. The Organization further noted that on February 1, 2018, the Claimant had stayed at Carrier expense at the cork Factory Hotel in Lancaster, PA while attending signal training. The Organization pointed to a January 6, 2020 letter from Manager Labor Relations Jeremy Milewski admitting that bed bugs were found in the Claimant’s room at the hotel, with the Organization asserting that the Carrier knew more about conditions at the hotel than admitted, with the Claimant wrongfully held responsible for the Carrier’s negligence. With support from prior Awards, the Organization asserts that the clear and unambiguous language of Rule 57 must be applied so that the claim is sustained.
The Carrier insists that this is not a discipline case that called for a formal investigation and that it acted responsibly to protect others. Because this is not a discipline case, the Organization bears the burden of proof, which it has not met. There is no proof that a year before the CNOC infestation the Claimant was bitten at the hotel, only that he was locked out of his room when bed bugs were discovered. The hotel has not been shown to be the source of the 2019 infestation. The Claimant must be held responsible for his own actions. The requested remedy is inappropriate because there are no Rules requiring that the Carrier pay for inspections of the Claimant’s residences. Rule 57 does not cover missed overtime. Moreover, on this property time not worked is paid for at the straight-time rate, as prior Awards indicate.
Unless it can be shown that this is a discipline case, the Organization bears the burden of proof. It is not a discipline case, as neither the Organization nor the Carrier has pointed to a rule of conduct or other instructions that the Claimant allegedly violated. Nor has any discipline case that this Board is aware of included a Carrier offer to cover what in essence would be an unpaid suspension with vacation entitlements. In the context of the COVID-19 pandemic, this case more closely approximates the situation where an employee, having tested positive for COVID-19, is required to isolate so as to protect other employees and the public. Surely, a COVID infection would not be viewed as a discipline case.
Regarding the Claimant’s stay at the Coke Factory Hotel over a year earlier, the Board finds no record evidence that would support a cause and effect conclusion that linked the CNOC infestation to the hotel stay a year earlier. The source of the infestation in the Claimant’s residence remains a mystery. The Organization has not provided even substantial evidence showing that the Carrier was responsible for the Claimant’s unfortunate infestation or that he was charged with behavioral shortcomings that should have led to a formal investigation in accordance with Rule 57.
In the final analysis, the Carrier’s response to the bed bug infestation on its property and more than substantial evidence that the claimant was the source of the infestation was not only prudent and appropriate but also considerate of the Claimant. There is no basis for a sustaining claim.
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.