PUBLIC LAW BOARD NO. 2746
*
BURLINGTON NORTHERN RAILROAD COMPANY
* CASE NO.16
-and-
* AWARD NO. 16
BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES
*
Public Law Board No. 2746 was established pursuant to the
provisions of Section 3, Second (Public Law 89-456) of the
Railway Labor Act and the applicable rules of the National
Mediation Board.
The parties, the Burlington Northern Railroad Company
(hereinafter the Carrier) and the Brotherhood of Maintenance of
Way Employes (hereinafter the
Organization), are
duly constituted
carrier and labor
organization representatives
as those terns are
defined in Sections 1 and 3 of the Railway Labor Act.
After hearing and upon the record, this Board finds that it
has jurisdiction to resolve the following claim:
"1. The dismissal of Track Laborer G. L. Cox,
October 8, 1979, was without just and
sufficient cause and wholly disproportionate
to the alleged offense. (System File S-S-189C).
2. Track Laborer G. L-. Cox now be compensated for
all lost wages until returned to work with all
seniority and rights unimpaired."
At the time of his dismissal Claimant Glenn L. Cox was
employed as a Track Laborer at Whitefish, Montana. By letter
dated September 4, 1979, Claimant was notified to attend an
investigation on September 11, 1979, in connection with his alleged
P. L. Board No. '2746
Case/Award No. 16,
~ ..
M
Page Two
violation of Rule G. The investigation was held on that date.
Claimant was present and was accompanied by a duly designated
representative of the Organization. By letter dated October 8,
1979, Claimant was notified that he was dismissed from the
Carrier's service, affective that date, as a result of his
violation of Rule G.
Rule G states:
"The use of alcoholic beverages or narcotics by
employees subject to duty is prohibited. Being
under the influence of alcoholic beverages or
narcotics while on duty or on company property
is prohibited. The use or possession of alcoholic
beverages or narcotics while on duty or on company
property is prohibited. Employees shall not report
for duty under the influence of any drug, medication,
or other substances, including those prescribed by
a doctor or dentist, that will in any way affect
their alertness, coordination, response, safety,
or ability to perform their work properly."
The record shows that Claimant's work week was Monday
through Friday, 8:00 a.m. to 4:30 p.m. On September 4, 1979,
Claimant was interviewed by his Roadmaster concerning an
incident
which had
occurred on Friday, August 31. At the
investigation, the Roadmaster stated that Claimant told him
that he had had one beer at 7:00 a.m. on August 31, prior to
coming to work, something that he does from time to time.
Claimant's testimony is more confusing. He agreed that he had
told the Roadmaster that he had drunk one beer at 7:00 a.m. on
August 31, but was evasive about whether or not he had actually
had a beer at that time.
' P. L. Board No. 2746
_' Case/Award No. 16
Page Three
A witness to the interview corroborated the Roadmaster'sstory. That, plus the rather transparent evasions of the
Claimant convinces this Board that Claimant did have a beer at
7:00 a.m. on August 31, 1979. Also, despite attempts to deny
knowledge of the Safety Rule Book, it is clear to this Board
that Claimant was well aware of the substance of Rule G.
Having said that, it is the view of this Board that the
Carrier has fallen short of its burden of proving by substantial
evidence that Claimant was in violation of Rule G. Claimant
was not shown to have used or possessed alcohol on the property,
nor to have reported to work or been on duty while under the
influence of alcohol. In fact, he produced numerous witnesses
who testified that there was no odor of alcohol about Claimant
that morning, that he was a safe worker, and that his speech
and actions on the job that morning were not at all unusual.
Among the witnesses was his Foreman, who Claimant and his coworkers referred to as one who would invariably send home a
person who reported to work under the influence of alcohol.
In view of the fact that there has been no showing that
Claimant either reported to work under the influence, or that
he was under the influence while at work, this Board cannot
agree with the Carrier that, by itself, Claimant's drinking a
beer prior to reporting to work constituted a violation of Rule G.
Accordingly, the claim must be sustained.
P. L. Board No. 37.
Case/Award No'.-16
40
11
AWARD: Claim sustained.
.2
,2
Z,
F. H. Funk,
Organization Member
w.
Elodynsky,
Carrier Member
Richard R, hasher,
Chairman and Neutral Member
NATIONAL MEDIATION BOARD
PUBLIC LAW
BOARD NO. 2746
xxxxxx*xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
x
BURLINGTON NORTHERN RAILROAD COMPANY * Interpretation
* of
-and- * Award
* Nos. 16 & 17
BROTHERHOOD OF MAINTENANCE OF.WAY EMPLOYEES
*
**xxxxxxxxxxxxxxxx**xxx***xxxxxxxxxx*x****xxx
By order dated March 28, 1984 the Honorable Edward
Leavy, United States Magistrate for the United States
District Court for the District of Oregon, directed that
this Board clarify the application of its Award Nos. 16 and
17, which were issued respectively on April 22, 1982 and
August 23, 1983.
The below-signed Chairman and Neutral Member of the
Board received and reviewed,the order of the District Court,
a copy of Plaintiff Glenn Cox's complaint filed in the
District Court (No. 83-1662), a copy of Defendent Burlington
Northern's Motion to Remand, the Affadavit of its Attorney.
Defendent's Memorandum of Authorities regarding such Remand,
and statements of position regarding the dispute from both
the Carrier and Organization Members of the Board.
Background Facts
The need for clarification arose when Mr. Glenn Cox, an
employee of the Burlington Northern, was twice dismissed
from the Carrier's. service as the result of two separate
PLB
N0. 2476
BN & BMWE
.Interpretation Award Nos. 16 & 17
Page
2
incidents which occurred on August 31,
1979.
The first
incident, which was addressed in Award No.
16
of this Board,
involved an allegation that Cox had appeared on the
Carrier's property under the influence of alcohol. This
Board heard that case at a session where several other cases
were. also presented to the Board. Fortunately or unfortunately, depending upon one's perspective, the second case,
Case
No. 17
which involved Cox and several of his fellow
employees, was not presented to the Board at that date.
Accordingly, when this Board reviewed the record evidence in
Case No. 16 we- found that the_Carrier had not met its burden
'of proof. and ordered that Claimant Cox be reinstated with
back pay. we should observe mere that the exculpatory
testimony offered by Cox's foreman, a Mr. Hanks, was most
critical in this Board's view in terms of reaching our
decision.
When this Board subsequently heard Case No.
17,
it
became clear that Mr. Hanks had a reason to testify in an
exculpatory·manner in Mr. Cox's behalf regarding the first
incident addressed by Case No.
16,
as Mr. Hanks along with
Mr. Cox and other employees was charged in Case No.
17
with
violating Carrier Rules regarding possession of alcohol on
Carrier premises. The evidence in Case No. 17 supported the
Carrier's finding of guilt and this Board so ruled.
Thus, only by the most fortuitous of circumstances
PLB NO. 2476
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Interpretation Award Nos. 16 & 17
Page 3
involving what might be considered logisitical and/or administrative oversight, Cases 16 and 17 were not considered at
the same time. Had they been so considered, this Board
would have, in all likelihood, reached a different result in
Case No. 16, having discredited Hanks' testimony in the process, and not have reinstated Mr. Cox to service.
Upon receipt of Award No. 16 the Carrier found itself in
an interesting dilemna. It could run the risk of continuing
to hold Mr. Cox out of service, in spite of the Award
reinstating him, on the basis that he was still dismissed
under the circumstances whictt were pending before the Board
in Case No. 17. Had the Carrier run that risk then there
would have been no back-pay liability at all as this Board
concluded in Case No. 17 that the Carrier justifiably
dismissed Mr. Cox from service on August 31, 1979. However,
the Carrier chose to reinstate Mr. Cox and made an award of
back pay to him
which deducted
certain amounts such as
Railroad Unemployment Insurance, outside earnings, and local
and Federal taxes among other items.
The Carrier and the Organization also determined that
Mr. Cox would be entitled to certain overtime earnings had
he been in service during the relevant time frame and they
computed what his overtime would be, less deductions typically made from earnings. Mr. Cox refused this payment on
the basis that he would be waiving other rights.
PLB NO. 2476
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Interpretation Award Nos. 16 & 17
Page.4
In this Board's view Mr. Cox made several substantial
errors, over and above the error of engaging in activities
on Carrier property that were clearly prohibited. His most
significant error was bringing this case back to the Board
for clarification. In our opinion his legal action smacks of
greed. Mr. Cox was compensated by the Carrier for a period
of time when the Carrier had justifiably held him out of
service. He seeks in excess of $50,000, when reveiw of both
Awards indicates that he was not entitled to one cent.
However, in view of the hardship that would be imposed
upon the Claimant it would be inappropriate in our view to
authorise the Carrier at this late date to recover the
monies paid to Claimant Cox. On the other hand, we find
that~the Carrier justifiably made proper deductions from the
a
back pay award including those deductions for outside earnings which are typically made in cases where employees are
returned to service with an entitlement to back pay, particularly-among employees in the non-operating crafts in the
railroad industry. Additionally, since we have found that
Mr. Cox was justifiably held out of service beginning on
August 31, 1979 until our Award reinstating him in Case No.
17, there is no basis to grant him any additional seniority
on operator's or machine operator's seniority rosters
which
he now claims. Additionally, as Mr. Cox determined not to
take the check for the alleged overtime earnings and as we
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Interpretation Award Nos. 16 & 17
Page 5
have concluded that he was justifiably out of service during
the relevant time frame, in this Board's opinion Mr. Cox is
not entitled to any additional monies from the Carrier.
Upon clarification, this Board concludes that the Carrier
has met its full obligations, and more, to Claimant Cox and
no further relief is granted by this Board.
This clarification was signed this 15th day of February
1985 in Bryn Mawr, Pennsylvania.
Richard R. Rasher
Chairman and Neutral Member -
Public Law Board 2746'