PUBLIC LAW BOARD N0. 2960
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 dismissal of Machine Operator Mark Cunningham for alleged
violation of Rule G was without just and sufficient cause and on
the basis of unproven charges. (Organization's File 3C-1667; Carrier's
File D-11-1-452)
(2) The Carrier violated Rule 19(a) when it utilaterally postponed the initial investigation.
(3) Claimant Mark Cunningham shall be allowed the remedy prescribed
in rule 19(d) of the effective Agreement
OPINION OF THE BOARD:
This Board, upon the whole record and all of the evidence, finds
and holds that the employes and the Carrier involved in this dispute
are respectively employes and Carrier within the meaning of the
Railway Labor Act as amended and that the Board has jurisdiction over
the dispute involved herein.
On January 21, 1981, the Carrier directed the Claimant to attend
an investigation scheduled for January 28, 1981, on the following charge:
"Your responsibility, if any, in connection with the violation of -
Rule G of the Chicago & North Western Transportation Co. General
Regulations and Safety Rules effective June 1, 1967, while
in possession of Company vehicle #21-2953 on 1/20/81 and 1/21/81."
On January 27, 1981, the investigation was postponed and rescheduled for
February 3, 1981. -The manner in which the postponement occurred is subject
to a procedural dispute. The Board must first consider this procedural
dispute before it considers the merits.
The Organization argues that a timely objection was registered at the
February 3 investigation by the Union representative protesting the
unilateral rescheduling of the hearing. They direct attention to Rule 19(a)
which indicates investigations will be "postponed for good and sufficient
reasons upon a request of either party." They assert that the phrase,
"on request of either party," mandates that an investigation be postponed
not unilaterally but by request. In this case, there was no request made by
the Carrier to postpone the investigation, but instead, the Carrier unilaterally
notified the employes of a postponement. The employes also direct attention
to Award No. 41 of Public Law Board 1844 which involved the same parties and
the same rule. That Award upheld the Organization's interpretation of
Rule 19.
Regarding the procedural issue, the Carrier argued that it is evident
that no objection was made by the Claimant or his representative at the
time the postponement was directed by the Carrier. Therefore, the Carrier
argues that the Organization acquiesced in the postponement and cannot now
be heard to object. It is also pointed out that the transcript (page 2) indicates
that the Claimant himself was attempting to request an extention based on the
first scheduled date of the investigation.
In considering the Organization's procedural argument, the Board must
first state that it has no dispute with the Organization's interpretation
of Rule 19(a).Award 41 of Public Law Board 1844 clearly established that
PLB 2960 3
AWD. N0. 30
which is apparent from the language of the rule. The language of the rule
requires that an investigation be postponed based on a request of one party
to the other. This is not a matter of semantics as suggested by the Carrier.
The language must be given its clear meaning. The Carrier should not be
allowed to unilaterally postpone an investigation without making a request
of the Union no more than the Union should be able to write the Carrier
and unilaterally dictate a postponement. While this Board has no dispute with
the Organization's interpretation of 19(a), it believes the facts in the
instant case differ from the facts which led to Award 41 of Public Law
Board 1844. It is apparent from the transcript that the Claimant was seeking
an "extension" of the original investigation schedule. It is apparent from
his comments regarding the trouble he was having getting an extension that
had the Carrier not postponed the investigation, the Claimant would have
submitted a request for postponement anyway. It is noted that Carrier made
this argument in the Claim handling prior 'to the case being appealed to
the Board. The Board believes that time limits should be strictly upheld.
It also believes that the merits of a dispute should not be ignored where
there is reasonable basis to believe that no procedural error occurred.
In light of the Board's conclusion that the Claimant would have requested a
postponement anyway, the Carrier's action in postponing the investigation
did not constitute a clear-cut violation of the rule.
Regarding the merits, the Organization argues that the Carrier has
failed to meet its burden of proving the charges leveled against the
Claimant. Specifically they direct attention to numerous contradictory
statements made by the Carrier's supervisors investigating the incident.
The discipline should not be allowed to stand as it is excessive, arbitrary,
and capricious. -
On the merits, the Carrier directs attention to the investigation which
bears out that on January 21, 1981, Assistant Roadmaster W. D. Lagan was
informed that a truck owned by the employer was in the ditch along Highway 157
near Madison, Illinois. Mr. Lagan went out to investigate and observed that
the truck was tipped on the side of the road and that Machine Operator
Kalfas was asleep in the truck. Mr. Lagan also observed that there were
two bottles of alcoholic beverages at the scene, one in the cab of the truck
and one outside the truck. Mr. Lagan then proceeded to the Collinsville,
Illinois, police station where he found the Claimant. At the time Mr. Lagan
observed that there was an odor of alcohol on the Claimant's breath and that
he was shaky and red eyed. He concluded that the Claimant was under the
influence of alcohol. They also direct attention to Railroad Police
Captain Greening who also observed the Claimant at the police station and
observed that the Claimant had a strong odor of alcohol on his breath, was
red eyed and shaky. They also note that in questioning subsequent to the
incident, Mr. Kalfas told the two Company police officers that he and the
Claimant had been drinking beer from approximately 9 p.m. to 2 a.m. The
Claimant was also questioned and admitted that he had been drinking.
In reviewing the evidence contained in the transcript of the hearing,
it is the Board's conclusion that there is substantial evidence of both
the Carrier's findings. Although the Claimant denies having consumed any
alcohol on the night in question, there is more evidence in the record to
conclude that he had been consuming alcoholic beverages. It is not the
Board's prerogative, duty, or privilege to resolve conflicts in evidence
so long as they are supported by substantial evidence. In this case, the
Carrier's hearing officer resolved the conflicts in evidence in favor of the
Carrier witnesses and it is concluded that there is substantial evidence to
support the hearing officer's determination. There eras no evidence produced at
PLB 2960
5
AWD. N0. 30
the hearing which would lead to the hearing officer to disbelieve the observations of the Carrier's police officer or their testimony that the Claimant
had admitted he had been drinking or that employe Kalfas had admitted that he
and the Claimant had been drinking.
Regarding the appropriateness of the discipline, the Board notes that
the Claimant was reinstated to service on May 20, 1982. The consumption of
alcoholic beverages while operating company equipment is an extremely
serious offense one for which discharge is held to be appropriate. In this
respect, it is the Board's conclusion that the period of suspension was not
arbitrary, capricious, or discriminatory.
AWARD
Claim denied.
Gil Vernon, Chairman
D. Crawford, Carrier Member H. G. Harper,
Emp oye Member
Date:
r,~
., 1~ S' 3