PUBLIC LAW BOARD N0. 2206
AWARD N0. 61
Case N0. 63
PARTIES TO DISPUTE:
BROTHERHOOD OF MAINTENANCE OF
WAY EMPLOYES
and
BURLINGTON NORTHERN RAILROAD
STATEMENT OF CLAIM:
Claim of the System Committee'of the Brotherhood that:
1. The Carrier's forty-five (45) days suspension from service
of B&B Helper, Don Howard, was without just and sufficient
cause. (System File 15-3)
2. That B&B Helper, Doer Howard, now be allowed pay for all time
lost because of the forty-five (45) days suspension referred
to in part one (1) of claim.
OPINION OF BOARD:
On June 6, 1979 Claimant was working as a B&B Helper on a gang under
the supervision of Foreman A. Bell. The Foreman learned of a death in his
family shortly before the start of the 7:00 A.X shift and notified his
supervisor that he would be absent for three days. He intended to leave
B&B Carpenter Jones as Acting Foreman, but Jones had not yet shown up for
work by 9:00 AM when Bell had to leave. According to the testimony of
Bell, Claimant Howard and B&B Helper Brown, who was also present at the time,
the Foreman left Howard in charge as Acting Foreman pending Jones` arrival,
with instructions to turn over the keys and supervisory responsibility to
Jones, assuming Jones was agreeable to accept that delegation. Bell left
after leaving instructions with Howard for the gang to complete certain
aaob~
AWD
~~ .
construction work and also inspect fire extinguishers in a hearby building.
It is not disputed that Bell told Howard he did not expect Jones to come into
work until the next day and, in any event, he was not sure Jones would accept
the appointment as Acting Foreman, in which case Howard was to continue as
Acting Foreman until Bell's return.
In the meantime, B&B Helper Miller, a friend of Jones, departed to fetch
Jones to the job. Bell left the scene and shortly thereafter Miller arrived
with Jones. Mr. Jones immediately began giving orders and an argument ensued
between him and Claimant Howard and B&B Helper Brown as to who was in charge.
As a result of this exchange, Howard threatened to call in the Special Agent but
Jones in fact did so. The Special Agent and an Assistant Trainmaster arrived
and looked for Howard and Brown for about thirty minutes before finding them
apparently performing fire extinguisher inspections. After reviewing the
situation, the Assistant Trainmaster removed Claimant and Brown from service
pending an investigation.
A full-scale investigation was held on June 12, 1979 at which Howard and
Brown appeared as their own representatives, after waiving the right to other
representation. On July 10, 1979 Grievant was advised of the outcome with
respect to his case as follows:
As a result of investigation accorded you on Tuesday, June 12,
19'/7,
the following entry is being placed on your personal record suspending
you from the services of the Burlington Northern Inc. for a period of
forty-five
(45)
days:
July 10,
1979·
Suspended from the services of the Burlington
Northern Inc. For a period of forty-five
(45)
days, commencing
Wednesday, June
6, 1979,
to and including Friday, July 20,
1979,
for violation of Rules
57, 661, 664, 665,
and
667
of the
Burlington Northern Safety Rules by entering into an altercation,
thereby being insubordinate to your acting foreman, failure to
comply with instructions From proper authority by absenting
yourself from duty without authority, and failure to perform
your duties between
7:30
a. m., and
10:30
a.m., on Wednesday, June
6, 1979,
at the B&S Shop, 14th Street, Chicago, Illinois.
PLB-2206 3
' AWD. N0. 61
CASE N0. 63
In assessing this discipline consideration was given to your
previous rule,violations of
a
similar nature.
Interviewed by the Terminal Superintendent and advised that if
involved in a similar rule violation in the future, it may
result in more drastic discipline being assessed.
. A. Ketcham,
ssistant Superintendent
We do not know the outcome of Mr. Brown's charges but the Howard discipline
was appealed by the Organization. The matter was denied at all levels of
handling and finally appealed to this Board for disposition.
Close analysis of the record, especially the hearing transcript, persuades
us that Carrier erred in finding Claimant guilty of most of the offenses
charged and consequently assessed inappropriately severe discipline. It is
apparent from the record that he responded intemperately to Jones' assertion
of authority, and to that extent he "entered into .a (verbal) altercation".
The evidence plainly shows, however, that this occurred against a backdrop
of confusion regarding Jones' actual status on June 6, 1979 and in the face
of substantial provocation from Jones. The failure of Foreman Bell to establish and communicate a chain of command, while perhaps understandable in light
of his own pressing personal problems, created a situation fraught with
potential for trouble since the record shows a history of animosity and disagreeable exchanges between Jones and Howard, and their respective adherents
Miller and Brown, all of which was within the knowledge of Foreman Bell.
Given the palpable confusion regarding the line of authority that morning,
it was unreasonable to find that Claimant was insubordinate to Jones or
failed to follow instructions from proper authority. The finding that he
absented himself without authority or failed to perform duties between 7:30
and 10:30 AM is patently wrong because the evidence shows to the contrary
_ that Howard and Brown performed work assigned to them by Foreman Bell during
that time. On balance, we find that Claimant is not without fault but he is
not culpable of any of the charges except for entering into a verbal alter
cation. We shall reduce the penalty from 45 days to LO days suspension
without pay and order Carrier to compensate Claimant for the difference.
AWARD
Claim sustained to the extent indicated in the Opinion. Carrier
shall implement this Award within thirty (30) days of its execution.
- /VI V
Employe Member Carrier Member
.i-
Dana E. Eische Chai many
Date: 1~6GG-y 1~`L