PUBLIC LAW BOARD N0. .2960
AWARD N0. 23
>t ' CASE N0. 18
PARTIES TO THE DISPUTE:
Brotherhood of Maintenance of Way Employes'
and
Chicago & North Western Transportation Company
STATEMENT OF CLAIM:
1. The twenty (20) day suspension assessed Trackman G. R. Christenson
was without just and sufficient cause. (Carrier's File 0-11-21-66)
2. Trackman G. R. Christenson shall be provided the remedy pre, scribed in Rule 19(d).
OPINION OF THE BOARD:
On September 5, 1980, the Carrier directed the Claimant to appear
at an investigation on the following charge:
"Your responsibility for failure to perform the duties of
trackman and your failure to comply with instructions of
Employees in charge during the dates of August 26 and
September 3, 1980, while employed as trackman on Twin Cities
Division Tie Gang No. 2 on the Le Mars and Waseca Subdivisions."
Subsequent to the investigation, the Claimant was disciplined to the
extent referred to in the statement of claim.
The Organization makes a procedural argument which we must
address before considering the- question of guilt. They contend
that the charge registered against the Claimant referred only to
August 26 and September 3 and that the Claimant was prejudiced when
the Carrier introduced evidence regarding dates inbetween August 26
and September 3. In this respect, Rule 19 was violated because it
requires that an employee be advised of a precise charge.
The Carrier responds that the Organization made no objection
to discussion of dates between August 26 and September 3 at the
hearing. The notice, it is contended, can be read to cover the
the period of August 26 and September 3 inclusive. Further, they
suggest that the Claimant was prepared and did in fact defend himself
on the entire period.
In considering the merits of this procedural argument, we
find that the Organization waived its right to make such an objection
by its failure to register it during the hearing. While there is
some ambiguity within the charge, it cannot be said to be prejudiced.
The Organization must have read the notice to be inclusive. as the
transcript makes clear that the Claimant and his representative
had offerred a .defense on all dates.
In regard to the question of guilt, we note that the charges
against the Claimant, which were detailed during the hearing, could
be generalized as "loafing." For instance, on some of the dates,
a supervisor testified that he several times had to insturct the
Claimant to engage in~various work activities where other employes
in the crew did not have to be specially instructed to engage in
their work. There were times when he just stood or sat around
when he should have been working. Other instances included a time
when the Claimant was alleged to have been late from lunch and a
time when he was,found reading a newspaper. One supervisor. testified
he had received complaints from employees that the Claimant was
not doing his share of the work.
In considering whether the charge is supported by substantial
evidence, we find that it is. However, we did not come to that
conclusion without carefully considering whether the Carrier's supervisors had provided sufficient documentation and without careful
consideration whether Carrier supervisors had sufficiently warned
P3.B-2960
3
' AWD. N0. 23
CASE N0. 18
the Claimant that his behavior would lead to discipline if not
corrected. While we find the documentation sufficient, we must
say that it is only marginally so. The supervisors could have done
a much better job. The warnings of disciplinary action were also
only marginal and could have been more expressed and less implied.
AWARD
Claim denied.
rnon, airman
Crawford, ar er member- T.-U.'Emp o e em er
Date:
02