Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 44902 Docket No. MW-47177
23-3-NRAB-00003-220056
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
PARTIES TO DISPUTE: (
(BNSF Railway Company STATEMENT OF CLAIM:
“Claim of the System Committee of the Brotherhood that:
The discipline (coaching and counseling) imposed upon Mr. S. Hodge, by letter dated July 22, 2020, for alleged violation of MWOR
1.13 was on the basis of unproven charges, arbitrary, excessive and in violation of the Agreement (System File C-20-D040-17/10-20- 0233 BNR).
The appeal* as presented by letter dated November 13, 2020 to General Director Labor Relations Joe Heenan shall be allowed as presented because said claim was not disallowed by Mr. Heenan in accordance with Rule 42.
As a consequence of the violations referred to in Parts (1) and/or (2) above, Claimant S. Hodge shall have his record cleared of the charges leveled against him and he shall be compensated for all wage loss suffered.
*The initial letter of claim will be reproduced within our initial submission.”
Form 1 Award No. 44902
Page 2 Docket No. MW-47177
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FINDINGS:
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.
At the time this case arose, the Claimant was working as a relief foreman. He reported to work on Tuesday, July 21, 2020 and during the day he noticed an e-mail from Assistant Roadmaster Zerr that was sent at 8:37 P.M. on the previous evening. The email indicated that he was to fill out and send in a Track Buckle Prevention Form nightly. Though the Claimant understood the e-mail, he was in the field and did not have any resources available to print the required form. Assistant Roadmaster Zerr reported to the gang on Wednesday, July 22, 2020 and provided the required form to the Claimant.
The Organization maintains that the Carrier violated the Agreement when it assessed discipline upon the Claimant by way of a Coaching & Counseling Letter, without the benefit of a fair and impartial investigation as required by the Agreement. It is an uncontested fact that the Claimant was not provided with an investigation, as called for under Rule 40 wherever discipline is involved.
As the Organization sees it, the “Coaching & Counseling Letter” plainly accused the Claimant of wrongdoing in connection with a recitation of specific facts that cannot be differentiated from those that would be specified in a letter of charge and discipline. It literally was impossible, given the undisputed facts, for the Claimant to have complied with the e-mailed task directive on Monday and Tuesday and the Carrier official rendering discipline to the Claimant, through another, on Thursday,
Form 1 Award No. 44902
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had never spoken with the Claimant regarding the matter involved with the Claimant’s alleged “coaching and counseling”. It maintains that arbitral precedent stoutly and clearly holds that accusatory language in an alleged Coach and Counsel letter marks the letter as discipline for which a fair and impartial investigation is due prior to the issuance of such discipline. In the Organization’s assessment, such disciplinary reprimands can only be issued following a fair and impartial investigation at which an employe is proven guilty of a violation.
The Carrier alleges that the Claimant was not disciplined, so no investigation was necessary. In its view, a Coaching and Counseling Letter is not disciplinary action, though it may be referenced should disciplinary action be warranted for the same problem in the future. It points out that the Organization has argued for such letters in lieu of actual disciplinary action, and its position here is antithetical. It insists that such letters merely record information or instructions given to employes.
As stated by the Carrier’s position, the Board agrees that a Coaching and Counseling letter is not considered a disciplinary action. As such, a careful review of the record convinces the Board that the Organization has failed to sustain its burden of proof in this case. Accordingly, the claim before the Board must be denied.
AWARD
Claim denied.
ORDER
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 21st day of April 2023.