PUBLIC LAW
MAN
- No. 6461
Case No. 21 Award No. 21
Brotherhood of Maintenance of Way Employes
-and
Grand Trunk Western Railway
PARTIES
to
DISPUTE:
STATEMENT
OF CLAIM:
"Claim of the System Committee of the Brotherhood that:
1. The discipline (withheld from service beginning October 23, 2009 and
subsequent dismissal on November 10, 2009) imposed upon Messrs. J. Tuzas
and D, Dean for alleged violation
of USOR - General Rule A - Safety; USOR -
General Rule H - Furnishing Information and Conduct; USOR General Rule P -
Employee Conduct-, USOR Rule 100 - Rules, Regulations and Instructions;
LIFE for Engineering - Section B: Core Safety Rules, Rights and Responsi
bilities #1 f 8c h; CN Prohibited Harassment, Discrimination and Anti- .
Ration Policy; and CN Code of Business Conduct; in connection with
allegations of racial slurs ally directed to a fellow employee during
which it is alleged that a rope was placed around the
neck of
a fellow
employee,
which allegedly occurred at
approximately 1330 hours on October
20, 2009 on the South Bend Division Mile Post 156.3 Indian Lake Road,
was on the basis of unproven charges. unwarranted, excessive and in violation
of the Agreement (Carrier's File GTV-BMWE-200900006).
As a consequence of the violation referred to in Part (1) above, Claimants'
J. Tuzas and D. Dean shall now receive the remedy prescribed by the parties
in Rule 25."
FINDINGS
: This dispute arose as a result of the Carrier charging the claimants' with the
following offense:
"your responsibility, if any, and, if you violated any company rules, instructions
or policies in
connection with
information received
by the company on October
21, 2009 indicating
that you and/or
other
employees were involved
in
an incident
during which racial slurs were allegedly directed to a fellow employee and during
which it is alleged that a rope was placed around the neck of a fellow employee.
This incident
is alleged to have occurred sat approximately 1330 hours on
Octr 20. 2009 on the
South Bend Subdivision M. P. 158.3. Indian Lake Road."
Following a joint formal
investigation, the Carrier found the claimants' guilty of
violating the
following rules, and assessed
then discipline in
the form of
being dismissed from service
effective November 10,
1.
USOR - General Rule A - Safety
2. USOR - General Rule H - Furnishing
Information aril Conduct
PLO No. 6461 C-211A-21
Page 2
3. USOR - General Rule P - Employee Conduct
4. USOR - Rule 100 - Rules, Regulations and Instructions
5. LIFE for Engineering - Section 11: Core Safety Rules, Rights and
responsibilities 61 f 8 h
6. CN Prohibited Harassment, Discrimination and Anti-Retaliation Policy
7. CN Code of Business Conduct.
The Carrier asserts that their investigation of the incident disclosed that orb October 20, 2009,
the claimants' were woridng at Indian Lake Road making field welds. They state the claimants'
confronted a fellow employee, Mr. Kevin Dyer and began making racial slurs and exhibited
inappropriate behavior towards him. They contend that the claimants' actions are strictly
prohibited by their rules and policy, and that based on the seriousness of the offense, the
imposed discipline of dismissal was clearly warranted.
According to Mr. Dyer's written statement (Exhibit #7), he asserts the claimants' confronted
him and asked N he know what happened to their missing mascot (a stuffed doll named
"Barney"). Mr. Dyer said that he told them that he knew nothing regarding the whereabouts of
their mascot. At that point he states that claimant Tuzas began making racial slurs by stating
"Maybe a Mexican had stolen it' and "Maybe it was an El Paso River crosses". Mr. Dyer stated
that vin he was reaching for a work to pick-up ballast, claimant Tuzas stepped on it so he
could not pick it up, and again asked him "who had Barney*. Mr. Dyer said that he told him that
he couldn't help him, whereupon Mr. Tuzas told his co-worker, claimant Dean to "Get a noose'.
Mr. Dyer states that several minutes later, claimant Dean approached him from behind and
placed a rope around his neck. He described the rope (Exhibit's 8 and 9) as being
approximately 12 feet long with a noose on the end. At the formal investigation, Mr. Dyer
emphatically stated that he did not take the claimants' behavior as being a joke. He said he felt
threatened by their verbal and physical actions.
Conversely, the claimants" disagree with Mr. Dyer's version of what transpired. Albeit, they
admit there was some discussion with Mr. Dyer regarding their mascot Barney, they steams
dissagree with his assertions that there was any racial or physical actions directed towards him.
They deny that the events as described by Mr. Dyer ever occurred.
After a thorough review of the testimony and evidence adduced at tire hearing, including the
arguments presented by the parties in support of their respective positions, the Board finds that
it cannot sustain
the Organization's position in this case. The recd supports the conclusion
that the claimants' engaged in inappropriate behavior with song racial overtones. We found the
claimants' self-serving testimony as being specious. While the record contains some conflicting
evidence, the Carrier resolved the evidentiary conflict in favor of Mr. Dyer. Accordingly. we
found no basis upon which to disturb the Carrier's credibility determination. One cannot
minimize the gravity of the claimants' offense. The behavior in which they engaged was totally
inappropriate and constituted a dear violation of Carrier's rules and procedures.
Based on the evidence and testimony brought forth in the record, the Board finds the Carrier
properly concluded that the claimants' were guilty of the offense for which they were charged
and that they were on solid grounds when they assessed discipline. However, while the Board
does not in any way minimize the seriousness of the offense, because it may warrant dismissal,
we find that in consideration of all factors involved in this case, including the claimants' tenure
Pl8 No. 6489 C.211A.211
Page 3
and relatively good work record, we deem the assessed discipline in its present form is
excessive.
Therefore, the claimants' are to be restored to service, but without any back pay for time lost.
The daimants' are to understand that the purpose of this Award is to give them one "last
chance" to be a safe and reliable employee, and the lengthy suspension without pay will
emphasize the gravity of this situation. In addition, they should also understand that any future
infractions of the rules cm their part could possibly result in the permanent termination of their
service.
The Carrier is directed to implement the Award within 30 days of receipt.
AYE:
As
specified
in the Findings.
r
Francis omzal
Neutral ember
~h
Cathy Co" Bradley Ainter
Carrier Member Organization Member
Dated:
6
-J2 - ~Uo