Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 45447 Docket No. SG-47996
25-3-NRAB-00003-230492
The Third Division consisted of the regular members and in addition Referee Bill Bohne Jr. when award was rendered.
(Brotherhood of Railroad Signalmen PARTIES TO DISPUTE: (
(Northeast Illinois Regional Commuter Railroad (Corporation (NIRCRC) d/b/a METRA
“Claim on behalf of R.D. McHeffey for reinstatement to service with compensation for all time lost, including overtime and skill pay, with all rights and benefits unimpaired and with any mention of this matter removed from his record; account Carrier violated the current Signalmen’s Agreement, particularly Rule 53, when it issued the harsh and excessive discipline of dismissal against the Claimant, without providing a fair and impartial investigation and without meeting its burden of proving the charges in connection with an Investigation held on September 10, 2021. Carrier’s File No. 11-2022-5,996 General Chairman’s File No. 05-D-22, BRS File Case No. 6057, NMB Code No. 103 - Out-of- Service Discipline: Safety/Operating Rules”
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.
By notice dated August 13, 2021, the Claimant was directed to attend a formal investigation on August 18, 2021, on charges he allegedly failed to protect the position of Second Shift Signal Maintainer at Galewood, with a starting time of 2:00 p.m. on Monday August 9, 2021, as directed by Micah Lewis, Signal Supervisor, on Friday August 6, and on Monday, August 9. He was specifically charged with violating Metra Employee Code of Conduct Policy, Rule “Q” and Section IV, Rule “B.” Following a postponement(s), the investigation was finally held on September 10, 2021. Following a very lengthy investigation, by letter dated September 20, 2021, the Carrier disciplined Claimant R. McHeffey with termination from employment effective on September 18, 2021. The Claimant was removed from service, with pay, before a hearing took place. The Organization timely appealed this matter to the Carrier officer charged with handling such appeals claiming that: 1. The hearing was not fair and impartial, 2. The discipline assessed by the Carrier was predetermined, and 3. The Carrier failed in its burden of proof. They demanded that the Carrier be required to rescind the mentioned discipline, remove all copies and references to such discipline from all the Carrier's personnel files and otherwise make the Claimant whole as required by Rule 54- Exoneration. The Carrier's highest ranking official, no rank less than Chief Engineering Officer must apologize to the Claimant in writing for issuing him discipline. The Claimant should be reinstated with full seniority and compensated for lost wages. The Organization also claims its cost associated to this matter for the egregious violation of the agreement. This includes all costs associated with the preparation for the investigation, post investigation costs, including postage, and all cost incurred, including but not limited to, salary reimbursement to the officers of the local, mileage to and from the investigation site.
The Organization has claimed that a serious “procedural violation” occurred due to the fact that one Carrier Officer, Ms. Danielle Gauthier, served in multiple capacities in these proceedings – the charging officer, the trial officer, and the disciplining officer. They claim that there is no way the Claimant could have received a fair and impartial investigation under these circumstances.
A review of the entire record of this case, including a thorough review of the investigation transcript, reveals that Ms. Gauthier went above and beyond what was necessary to ensure that the investigation was fair and impartial, giving more leeway to the Claimant and the Organization than is normally given. She permitted all witnesses for the Organization to testify without interference, and gave the Organization ample opportunity to not only question their own witnesses and the Carrier witnesses, but to re-question them if they requested. In fact, it is the opinion of the Board that this investigation, under the guidance of Ms. Gauthier, was fairer than many investigations
we have witnessed. While one person acting in these capacities does not sit well with this Board, and we would like to see separate Carrier officers serve in these different positions, it also does not violate any rules of the collective bargaining agreement. Many decisions have been rendered on these exact same contentions. We have reviewed quite a few of these decisions. While these decisions have come down on both sides of the issue, the bottom line is whether the collective bargaining agreement was violated, and whether the instant case was handled fairly and impartially, a cornerstone in all discipline cases. This Board has determined that this investigation met the standards of fairness and impartiality. Accordingly, the Organization’s arguments in this vein are therefore rejected and we will not overturn this decision based on this procedural argument.
We will now address the facts of this case. As was made clear during the investigation, there is no doubt that the Claimant, on more than one occasion and by more than one superior, was instructed to report to the Galewood B-12 position on August 9, 2021, at 2 p.m. Even though he made a displacement to begin a new position on August 10th, he still didn’t own a position to work on August 9th. Since he didn’t own a position on August 9th, the Carrier was well within its rights to assign him to a vacancy that they needed coverage for. In fact, the Carrier was so lenient with him that, instead of assigning him to this vacant position on Friday August 6th, they granted a sick day. As was brought out during the investigation, for some reason the Carrier had assigned another employee to also cover this vacant position. However, this did not relieve the Claimant of his responsibility to follow the instructions of his superiors. And while there was some conflicting testimony as to whether or not the Claimant clearly understood the instructions he was given, the fact is, if he was uncertain what he was being told to do, then it was his responsibility to have sought clarity on it. He knew he was being instructed to do something, and he should have made certain what he was being told. To claim after the fact and at the investigation that he didn’t understand the instructions from his supervisors was too little and a little too late. The fact remains that he was given direct instructions from his supervisors as to where to report to cover the vacancy, he simply chose not to get clarification on something he readily admitted he was not clear on, and did not follow the instructions. The question begs, if he claimed something was not clear to him, then why didn’t he question it when the order was given and not just let it slip by. The general rule for obeying orders, with the exception of issues involving serious safety matters, is obey now, grieve later. For some reason, the Claimant chose not to abide by this and chose the course most detrimental to him.
On a final note, this violation in and of itself would not normally warrant dismissal. However, due to the Claimant’s brief employment history of approximately
13 months and his prior discipline record, which is his pleading guilty and accepting a waiver on serious charges just a month prior to this incident, the Board can see no justification in altering the discipline.
We would be remiss if we didn’t address the additional remedies sought by the Organization. During the progression of this case the Organization requested additional remedies to this dispute, those being that a personal apology from the Chief Engineering Officer be given to the Claimant, and that the Organization be reimbursed for all expenses incurred by it in preparing and progressing this case on behalf of the Claimant. After careful review of the record and the collective bargaining agreement, we find that nothing in the agreement provides for such remedies. If not contractually provided for, there is no way that such remedies may be entertained by this Board. Accordingly, all such claims for an apology and for reimbursement to the Organization shall be dismissed.
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 3rd day of April 2025.