"THE; BNSF RAILWAY COMPANY (hereinafter referred to as "the Carrier") violated the current effective agreement between the Carrier and the American Train Dispatchers Association (hereinafter referred to as "the Organization"), including but not limited to Article 24(b) in particular when on November 21, 2007, the Carrier arbitrarily disciplined train dispatcher Huckaby, assessing her a ten {10} day record suspension without due cause and absent any demonstrated rules violation.
The Carrier must now overturn this decision to discipline and remove the mark from her personal record. Further, it is now incumbent upon BNSF to make principal whole for any and all time lost, including wages not paid as a result of attendance at the disciplinary hearing.
That the Carrier and Employees involved in this dispute are respectively Carrier and Employees within the meaning of the Railway Labor Act as approved .Tune 21, 1934;
On May 18, 2007, Kadijah fluckaby `"Claimant") was assigned to work as a second trick dispatcher on the Denver South desk at the Carriers Network Operations Center in Fort Worth, Texas. As second trick dispatcher, Claimant reported for duty at approximately
At approximately 1614 hours, a Maintenance of Way Welder contacted the Claimant by radio to release his track and time authorization and to advise that his crew had been working on the switch from the Main l Track to Hump 3 at Canon City Junction. The Welder further advised he was taking the switch out of service and that, in the event the dispatcher needed to authorize a train in or out of Hump 3, a maintenance of way employee would be required to "walk" the train over the switch. The Claimant confirmed the Welder's instructions regarding the switch by repeating his instructions.
At approximately 1616 hours, the Claimant used the computer mouse and clicked "Create Device Block." However, she did not complete the event and the "Device Block" was not applied to the system. Consequently, there was no marking device to provide protection for the switch that was taken out of service by the Welder. In addition, the Claimant failed to make any notation of the unsafe switch condition on her written transfer to the third trick dispatcher relieving her on Inlay 18 and the unsafe condition of the switch remained unprotected.
On May 21, ?00'7, the third trick Denver South dispatcher was unable to locate a track bulletin referencing the switch being out of service and reported the situation to the Manager Dispatcher Practices Rules ("MDPR"), Junetta Wells, who was on duty at that tine. MDPR Wells subsequently researched the computer records and audiotapes and found that on Inlay 18 the Welder had reported to the Claimant that the switch had been taken out of service. Di'R tells also found that no track bulletin, track tag or device block had been. applied to the system to protect the unsafe switch condition.
The Claimant was subsequently interviewed by Chief Dispatcher Marty Stinson and DPR Ron Bailey on flay 24, 2007, during which the three of them listened to an audio recording of the Welder and the Claimant discussing the subject switch. At the conclusion of that interview the Claimant was directed to attend an investigation on May 27, 200?, to review the facts and her responsibility in connection with the unblocked I-lump 3 sw=itch. The investigation was postponed a number of tunes and was subsequently held on November 6, 2.007. At the conclusion of the investigation, a disciplinary notice dated November 21, 2007, was issued to the Claimant which states in pertinent part:
The foregoing discussion clearly revealed, and the Claimant did not deny, that she failed to place a track bulletin, track tag or device block into the system to protect the unsafe switch condition. She also failed to communicate the unsafe condition to the relieving dispatcher in her written transfer. Therefore, by her own admission, the Claimant's rule violation has been established, and no further proof of the charges is necessary.
The Organization offered several technical arguments in support of its position. First, the Organization argued that the initial charge letter .vas not issued to the Claimant within the requisite five-day time limits as specified in Article 24 (b) of the Agreement. Article 24 (b) states in pertinent part as follows:
Notice of Investigation was dated May 24, 2007. Thus, it would appear that the subject Notice was untimely. However, the evidence established that although the incident did occur on May 113, the Carrier did not actually learn of the Claimant's transgression until May 21. 2007. Therefore, the evidence clearly shows that the Notice of Investigation eras issued on the third day after the Carrier learned of the incident; which is well within the five-date time limit.
Next, the Organization argued that the Claimant vas not afforded a fair and impartial hearing because Transportation Process Specialist, Dennis L.. Mead served as the hearing officer annd ultimately assessed the discipline upon the Claimant. This Board does not
PLB #7292is no showing that any provision of Article 2or any other provision of the Collective Bargaining Agreement prohibits a member of management from performing more than one role during the disciplinary process. In the instant case, the Claimant was provided a full opportunity to explain her version of the facts during the investigation. In addition, there was no evidence to indicate that Mr. Mead was biased during the process or that he neglected to consider all of the evidence before reaching his decision. Therefore, this Board finds no evidence to support a finding that the Claimant was deprived of a fair and impartial hearing.
The Organization pointed out that the subject switch was not in CTC territory and argued that it cannot, therefore, be blocked by the dispatcher. Accordingly, the Organization advanced the assertion that the Claimant was somehow being held responsible to perform an action that is impossible to accomplish. An examination of the evidence reveals that although a dispatcher cannot actually block a switch which is not within CTC; territory, the dispatcher is still required to protect the unsafe track condition. In this case, the Claiant had a responsibility to control entry over the subject switch by placing a label
Finally, the Organization asserted that the Carrier had not challenged positions presented by the Organization during the handling of this dispute and that the claim should therefore, be sustained. In support of its argument, the Organization submitted several previous Board decisions which are summarized in National Railroad Board Third Division Award No. 28459 involving disputed work performed by an outside janitorial service. In deny=ing those claims, the Board held:
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It is clear from the above cited language, that in Award 2$459, the Union had claimed that the Carrier violated the Collective Bargaining Agreement when it subcontracted janitorial work to an outside contractor. In that sward, the Board held that the Carrier had provided material statements during the dispute resolution process which adequately explained its reasons for denying the subject Claims and that the Organization had not denied the Carrier's material statements. Likewise in the instant case, by letter dated June 2°T, 208, General Director Labor Relations, 0. D. Wick had clearly provided the Carrier's reasons for denying the Claim and had disputed all of the Organization's assertions and arguments raised on appeal. Although the Organization's subsequent letter vas well written and well intended, it appears to be a repeat of the Organization's previously raised arguments. As such, the Carrier was not required to provide a further
In its submission, the Organization also requested a remedy that would snake the Claimant whole for any and all lost time, including wages for all tune lost as a result of attendance at the disciplinary hearing. (Emphasis added) However, article 24 only pro,vides for the repayment of lost wages minus interim earnings if the dispatcher is cleared of the charges, and it makes no provision for pay to a Claimant while attending an investigation. Referee Marty E. Zusman examined this same argument in Public La Board No. 6519, Award No. 4, and in that award the Board had this to say:
In view of the above, this Board also finds that the Organization's request to have the Claimant compensated for time spent while attending the investigation constitutes a demand that is not provided for in the Collective Bargaining Agreement.
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The: evidence record clearly established that the Carrier has sustained its burden of proof that the Claimant committed the violation for which she was disciplined and that the Organization's technical arguments should not be sustained. Concerning the appropriateness of the discipline assessed, previous boards have recognized the heavy responsibility carried by dispatchers to assure the safety of passengers, train crews and property. In the instant case, the evidence established that the Claimant had received notice that the subject switch teas defective and out of service. However, because of her failure to institute a track bulletin, track tai or device block in the Carrier's system
days. As a consequence, this Board finds that the Claimant's job performance falls far short of what can reasonably be expected of a train dispatcher and that the discipline assessed was not excessive or capricious.
Paul C'.~Itapcte_aine
Chairman and Neutral Member
~tay,, 2011