PUBLIC LAW BOARD N0. 2960
AWARD N0. 100
CASE N0. 135
PARTIES TO DISPUTE:
Brotherhood of Maintenance of Way Employes
and
Chicago & North Western Transportation Company
STATEMENT OF CLAIM:
Claim of the System Committee of the Brotherhood that:
(1) The discipline of loss of track inspector, foreman and
assistant foreman's seniority and thirty (30) day suspension assessed T. H. Halvorson for alleged insubordination and for failing to perform your job was
without just and sufficient cause, capricious and
arbitrary. (Organization File 2D-4269; Carrier File
81-84-78-D). .
(2) The Carrier violated the Agreement when it unilaterally
postponed the investigation and thereafter held the
investigation outside the time limits specified in Rule
19(a).
(3) T. H. Halvorson shall be allowed the remedy prescribed
in Rule 19(d).
OPINION OF THE BOARD
This Board, upon the whole record and all of the evidence,
finds and holds that the Employe and Carrier involved in this
dispute are respectively Employe and Carrier within the meaning
of the Railway Labor Act, as amended, and that the Board has
jurisdiction over the dispute involved herein.
PLB-2960 Award No. 100
On November T0, 1983, the Carrier directed the Claimant to
attend an-investigation to be held on November 15, 1983, on the
following charge:
"Your responsibility in connection with your failure
to do your job as instructed by Assistant Roadmaster
Corcoran and your insubordination to Assistant Roadmaster Corcoran on Tuesday, November 8, 1983."
On the same date, the Carrier issued a postponement notice moving
the hearing back until November 30, 1983. Subsequent to the
hearing, the Claimant was assessed the discipline now on appeal
before the Board.
The Organization first raises a procedural issue. They
argue that Rule 19(a) was violated because the postponement was
unilaterally granted. They note that the investigation can be
postponed at the "request" of either party. They assert that
there was no request. On the merits, they contend that the
Carrier has not sustained their burden of proof.
The Carrier argues that the charge is supported by (1)
substantial evidence showing that the Claimant failed to properly
distribute the material in accordance with instructions he had
received from Corcoran, and (2) the fact that when the Claimant
was called upon to explain. his performance, he became uncooperative and argumentative toward his Supervisor.
First, with respect to the procedural issue, we note that
the pertinent portion of Rule 19(a), as it relates to this case,
was discussed in Award 41 of PLB 1844. It was stated with
respect to postponements:
_2_
PLB-2960 Award No. 100
"But the claim comes to us on the procedural/jurisdictional complaint that Carrier violated Rule 19(a) which
reads in pertinent part as follows:
'The investigation will be postponed for good
and sufficient reasons on request of either party.'
"The crux of this claim, as presented and pursued on
the property, is that Carrier did not 'request' but
rather just unilaterally presumed to postpone the hearing originally scheduled for September 2, 1977. On the
property Carrier defended against that complaint by
asserting that there were 'good and sufficient reasons'
for postponement, and also by pointing out that the Organization requested and was granted several postponements
by Carrier before the hearing actually was held. At our
hearing Carrier asserted for the first time that then
Vice Chairman Jorde was 'told' about the necessity of a
postponement prior to August 30, 1977. The Organization
articulated its objection regarding that postponement on
the record at the hearing and pursued this objection
diligently on the property. At no time prior to our
Board Hearing did Carrier raise this latter defense. It
comes too late now to be legitimately raised and considered.
"There is no doubt on this record concerning the
'good and sufficient reasons' why Carrier wanted a post
ponement. The only question is whether Carrier complied
with the clear contractual requirement that it 'request'
such postponement from the other party to that agree
ment. To 'tell' is not the same as to 'request.' We
must assume that the parties to the Agreement knew the
meaning of the words which they used. Irrespective of
the bona fides or the justification for a postponement,
Carrier v1ofa£ed Rule 19(a) when instead of requesting a
postponement it unilaterally granted itself a postpone
ment and merely informed the Organization of that fait
accompli. It should be noted that each party is re=
qulr~e £o grant the other a postponement under Rule
19(a) when requested to do so for good and sufficient
reasons. If Carrier had requested that particular post
ponement and the Organization had refused, we would have
a different case. But Carrier's fatal error herein was
in failing altogether to make the request and in acting
unilaterally."
Thus, the test is bifold: (1) was there a "request", and (2)
was it for "good and sufficient reason".
nLB-2960
-- Award
No. 100 -
In this case, ft is the finding of the Board that there was
no violation of Rule 19(a), because the Carrier did, in fact,
"request" a postponement. One only need look at the first appeal
of the discipline by the Union. It contained the following
statement:
"0n November 10, 1983, I returned Division Engineer
Arter's telephone call and he requested a postpone
ment:of the investigation because~o assistant Road
master Corcoran was going on vacation during the
scheduled date of November 15, 1983".
The only remaining question is whether the "request" was for
"good and sufficient reasons". There are competing assertions
about when, in other cases, the Carrier has denied or granted
postponements due to vacations. However, the propriety of the
Carrier's actions in those cases are not before this Board.
Based on the individual circumstances before us, there was "good
and sufficient reason" for the postponement. Therefore, the rule
was not violated when the hearing was postponed.
With respect to the merits, the Carrier argues that the
discipline was warranted because (1) the job was not done as
instructed, and (2) because of insubordination. Regarding the
first portion of the charge, even Corcoran, the Carrier's main
witness against the Claimant, admitted there was not much evidence on this point. Sufficiently conclusive of this is the
following testimony:
Q. "Mr. Corcoran, do you feel that Mr. Halvorson failed to
to follow previous instructions regarding the distribution of material in this specific area?
_4_
PLB-2960 Award No. 100
A. "Uh, it's not so much that he failed to foresee uh, carry
out the orders, or whatever decisions that were made, it
was that his nature or his way of dealing, or communicating and establishing how it-was gonna be done, which
was non-existent at the time I approached him on November, or on the 8th, Tuesday, November the 8th.
Q. "Did you feel confident of Mr. Halvorson's authority to
perform his duties as foreman on the material gang on and
before the 8th of November?
A. "I felt the job was getting done somewhat adequately,
yes."
Noteably, the witness failed, when directly asked, to state that
the Claimant failed to perform the job as instructed. Accordingly, while there were material shortages, these were not wholly
out of the ordinary or unexplicable. Thus, the evidence is
insufficient concerning the first portion of the charge.
As indicated by Corcoran's testimony, most of the evidence
related to the charge of insubordination. With respect to the
charges of insubordination, it is the opinion of the Board that
there is not enough evidence to justify a 30-day suspension.
Moreover, it is not serious enough to justify the termination of
his seniority rights as a track inspector, assistant foreman, and
foreman. There are varying degrees of insubordination and this
was a mild form. Thus, while we can accept that he was "uncooperative", his behavior beyond this was not particualrly quarrelsome or vicious.
In view that there was insufficient evidence on the first
charge, and in view that the seriousness of the insubordination
was somewhat limited, the penalty will be reduced to a 10-day
suspension, and the Claimant should be compensated for ail 'lost
wages as the result of the suspension. It is also noted that the
-5-
PLB-2960 Award No.
100
Claimant's seniority rights had been previously restored. Therefore, there is no need to order them reinstated. However, because termination of these rights was unjustified, the Claimant
should be made whole for the loss of these rights between the
time of the discipline and the point at which the rights were
restored.
AWARD:
The Claim is sustained to the extent indicated in the
opinion.
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