"THE BNSF RAILWAY COMPANY (hereinafter referred to as "the Carrier") violated the current effective agreement between the Carrier and the American Train Dispatchers Association ("the Organization"), including but not limited to Article 24(b) in particular when can July 21, 2008, the Carrier arbitrarily disciplined train dispatcher L. L. Allen, dismissing him without cause and absent any rules violation.
The Carrier shall now overturn the previous decision to discipline the aggrieved and shall return hire to service, remove this nark from his record, make him whole for any and all lost time, including wages (including wages for all time lost as a result of attendance at the disciplinary hearing) and shall restore the record of the aggrieved to its state prior to the Carrier's July 21, 2008 decision.'}.
That the Carrier and Employees involved in this dispute are respectively Carrier and Employees within the meaning of the Railway Labor Act as approved June 21, 1934;
Lenny Allen ("Claimant") was hired by the Carrier on November 9, 1994, and at the time of the events leading to this appeal, he was assigned to work as a dispatcher at the
dispatchers who both train and till vacancies. In addition, the center is staffed jointly with Union Pacific Railway employees and focuses primarily on the dispatching of trains and transfer movements in the Houston, Texas area.
instructions on the Claimant's home telephone recorder to immediately contact the Carrier. As a result of the Claimant's failure to report for work on the morning in question, the Carrier moved a dispatcher from another job assignment to cover the Claimant's work assignment. The Claimant subsequently contacted the Carrier at 10:01 a.m. to report that he had been up all night with a sick child and that he had overslept. He did not report to work that day.
Fay letter dated May 2'7, 2008, the Claimant was instructed to attend an investigation of the matter that was scheduled to take place on lVlay 30, 2008. Following several mutually agreed postponements, the investigatory meeting took place on July 2, 2008. Following the investigation, a Dismissal Letter dated July 21, 2008, was issued to the Claimant which states in pertinent part as follows:
The Organization argued that the Carrier had assessed discipline to the Claimant without first reviewing the transcript of the investigation. The Organization pointed oat that the investigation was conducted on July 2, 2008, and the subject discipline was imposed on July 21, 2008. However, the Organization maintained that because the Carrier had not provided a copy of the transcript to the Organization until July 2, 2008, the harrier could not possibly have reviewed it before administering the subject discipline to the
It is standard practice on the property to tape record the investigation and then submit the recording to a transcriptionist for typing. The processing of the recording and transcript
A draft copy of the transcript was available for review by the Conducting Officer on July ?, 2008;
The Conducting Officer resubmitted the transcript to the transcription service for final typing aver making corrections to the draft;
s he final copy of the transcript was downloaded by the Conducting Officer on July 15, 2008.
PLB 7292
Case No. I?In view of the evidence, it is clear that the Conducting Officer reviewed the transcript, made corrections, and received the final copy of the transcript well before the issue date of the Letter of Dismissal.
As this Board has previously held, a review of the transcript is absolutely necessary before disciplinary action is issued to an employee. However, when the Organization
the burden shifted to the Organization to provide persuasive t argument. As discussed above, the clear evidence established
that the Conducting Officer reviewed and corrected the first draft of the transcript and the final copy was available to him six days prior to the issue date of the Letter of Dismissal dated July 21, 21108. Since no evidence was submitted to substantiate the Organization's argument, it is not sustained.
The Organization argued that the Claimant was not afforded a fair and impartial hearing because Transportation Process Specialist, Dennis L. Mead, served as the hearing officer and ultimately assessed the discipline upon the Claimant. The Organization submitted National Railroad Adjustment Board Third Division "ward 2fl(114, which examined a
The conduct of the hearings in this matter gives us considerable concern. Hearings under the grievance provisions of the Agreement (Rule 22) are neither adversary proceedings nor criminal trials. As fact finding investigations such hearings must be conducted with utmost fairness and objectivity by the hearing officer; they must not be impeded by technical rules of evidence and must accord employees reasonable latitude in developing their defensive positions. Above all, such hearings mast be conducted in such a manner that the conduct of the hearing officer is unimpeachably objective and unbiased in the development of facts. In the case before us, even though Claimant's representative may have been contentious, the hearing officer's conduct eras clearly beyond the pale of acceptability. In the initial hearing the hearing officer interrupted Claimant's witnesses on over thirty occasions, attempting to exclude their testimony, we think grossly improperly. He attempted to answer questions put to Carrier witnesses and generally exhibited unmistakable bias arid prejudicial conduct.
PLB 7292process will not remain impartial. Although this Board agrees with the finding in Award '0014 under that specific fact scenario, we also find that the facts that existed in that case are clearly different than the facts in the instant case. The record in the instant case
Claimant's clue process rights were protected throughout the hire with a full opportunity to explain his version of the
facts during the hearing and both the Claimant and his representative were each permitted to vigorously cross-examine the Carrier's witness without interruption. In addition, there is no evidence that the Claimant in the instant case was not permitted to introduce evidence or witness testimony in support of his defense. Further, there was no evidence: to show that Mr. Mead was biased during the process or that he neglected to consider all of the evidence before reaching his decision. Finally, this Board notes that Article ?4 contains no provision which prohibits a single member of management from performing
the Organization during the handling of this dispute, and the claim should, therefore, be sustained. In support of its argument, the Organization submitted several previous Board decisions; including National Railroad Board Third Division Award 28.9 involving disputed work performed lay an outside janitorial service. In denying those claims, the Board hell:
PLB 7292With respect to the three separate Claims, we note that the wording of the individual Claims and the following correspondence is the same for each. The Carrier, in its identically worded denial letters, substantially gave its reasons for rejecting the Claims. There is nothing in the record properly before us that refutes these material statements and assertions. It has been consistently held by the Board that when material statements are shade by one party and not denied by the other party, so that the allegations stand unrebutted, the material statements are accepted as established fact. On that basis, we must deny these Claims.
When the Claimant called in on May ?5, 2008, he stated that he had overslept because he had been up the previous night with a sick child. However, during the investigation he
prevented him from protecting his assignment of May 25, 2008. Unfortunately for the Claimant, leis conflicting testimony and failure to explain the purported nature of his MLA condition did little to establish a valid reason for his failure to protect his assigrunent on the date in question.
In the Letter of Dismissal, the Carrier asserted that the Claimant had violated General Code of Operating Rules ("CrCORg') Rule 1.15 when he eras Absent Without Official Leave ("AWOL") on the date in question. Rule 1.15 states:
As previously stated, this Board hands that the Claimant's actions violated Rule I.IS and on that basis alone, severe discipline was warranted.
The Carrier also asserted that the Claimant's AWOL that day constituted an act of negligence in violation of CzCOIt Rule 1.6 which states in pertinent part:
PLB 7292During the investigation, the Claimant's supervisor stated his belief that the Claimant was negligent based solely ran the fact that he had failed to protect his assignment on the date in question. However, the Claimant stated that he fully intended tea work his shift that day, and he had not overslept deliberately. According to the Claimant, he set his alarm clock to wake him up but, because he had been up the previous night with a sick child, he unintentionally overslept.
The Organization did not dispute that the Claimant was AWOL can the date in question, but it argued vigorously that the Claimant's absence was not an act of negligence. Therefore, the Organization maintained that the Claimant had not violated GCOR Rule 1.6 as charged in the Letter of Dismissal. The Organization pointed out that the Claimant is a veteran employee of more than 14 years of service with the Carrier, and he had not committed an act of hostility or willful misconduct. Therefore, the Organization insisted that terminating the Claimant for unintentionally oversleeping is excessive..
The term "negligence" can hold different meanings under differing circumstances. However, that term generally infers that a person failed to exercise the degree of care that someone of ordinary prudence would have exercisers in the same circumstance. This Board is of the belief that most, if not all individuals, depend on an alarm clock to wale them from sleep. Based on the Claimant's convincing testimony that he had set his alarm to wake him, and in the absence of any evidence to the contrary, this Board finds insufficient evidence on the record that the Claimant vas negligent or that he failed to exercise a normal degree of care as required by Rule 1..
reprimand in March 2008 for excessive absenteeism, and in May 2008 he signed a waiver in which he agreed to accept a serious 30-day record suspension for failing to report to work and cover his assignment. Therefore, it is clear that the Carrier had placed the Claimant on notice that has job was in serious jeopardy. Notwithstanding the Claimant's terrible disciplinary record, however, the Carrier bears the burden of proving the Claimant twos guilty of all the charges contained in the Notice of Termination. Since this Board has found insufficient evidence to establish drat the Claimant violated Rule 1.6. the
PLB 7292
In its submission, the organization requested a remedy that would make the Claimant "whole for any and all lost time, including rvaes for all tune lost as a result of attendance at the disciplinary hearing". (Emphasis added) However, article 24 only
cleared of the charges, and it males no provision for pay to a Claimant white attending an investigation. Public Law Board No. 6519, Award 4, examined this same argument and had this to say:
Carrier pointed out on property that there was no past practice. The facts indicate that the Claimant was charged arid found guilty as a result of that investigation. Whatever the consequence of being censured and in addition, losing a day's wages, the parties have no language which provides compensation herein, and articles 18 and 20 do not apply. Accordingly, the Board must deny the claim.
In view of the above, this Board must find that the Organization's request to have the Claimant compensated for tinge spent while attending the investigation constitutes a remedy that is not provided for in the Collective Bargaining Agreement.
to perform his duties while he vas absent. In addition, he exposed the Carrier to additional labor costs in the form of costly overtime. Therefore, this Board finds that the Claimant violated Rule 1.15 when he was AWOL on May 25, 2008 and that severe PLB `1292
