PUBLIC LAW BOARD NO. 5244
BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYEES )
Case No. 21
and )
Award No. 4
NORTHEAST ILLINOIS REGIONAL COMMUTER )
RAILROAD CORPORATION (A PUBLIC CORPORATION) )
Martin H. Malin, Chairman & Neutral Member
M.J. Schappaugh, Organization Member
J.S. Morse, Carrier Member
Hearing Date: August 26, 1992
STATEMENT OF CLAIM:
Claim of the System Committee of the Brotherhood that:
Claimant L.R. Frank's discipline and transcript of
hearing should be removed from his personnel record.
Claimant Frank should also be compensated for thirtyfive (35) days wage loss suffered and made whole for
all rights affected by his unjust discipline.
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FINDINGS:
Public Law Board No. 5244, upon the whole record and
all of the evidence, finds and holds that Employee and
Carrier are employee and carrier within the meaning of the
Railway Labor Act, as amended; and, that the Board has
jurisdiction over the dispute herein; and, that the parties
to the dispute were given due notice of the hearing thereon
and did participate therein.
On November 7, 1991, Claimant was notified of a formal
hearing to develop the facts relating to an incident which
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occurred on November 5. The notice charged Claimant with
violating General Rules A, B, and I, and Basic Safety Rules
B20, B24, E170, and Metra Electric Special Instruction Rule
1OF
for
allegedly entering the track area just south of Van
Buren St. station without receiving proper authority
and without taking proper safeguards . . . [which]
caused the vehicle you were using to foul track #2
blocking train #117 and causing it to back up until the
area was cleared.
The hearing was originally scheduled for November,
14,
1991, but was postponed to and held on November 19, 1991.
On December 6, 1991, Claimant was advised that he was found
to have violated Rule A, B, I, B20, B24, E170 and
1OF.
Claimant was assessed a thirty-day actual suspension. In
addition, Claimant was advised that a five-day deferred
suspension assessed the same day as a result of a different
incident would be served in conjunction with the thirty-day
suspension.
On November 5, 1991, a truck driven by an employee
other than the Claimant, assisted by two other employees,
drove onto track number 1, which was out of service. The
employees did not have proper authority to enter the track.
Because of the truck's size, it also fouled track number 2.
Claimant was using his truck to move a welding machine.
Claimant entered track number 1 behind the first truck.
Claimant did not have proper authority to enter track number
1.
A train approached on track number 2. The employees
with the first truck were unable to back up to get out of
the way of the train because Claimant's truck was blocking
them. As a result, the train was unable to pass. The
incident did not cause any damage or injury.
The other three employees waived hearing and reSeived
thirty-day deferred suspensions. As of the date of the
hearing, Claimant, who was hired on November 9, 1987, had no
prior discipline. However, Claimant was involved in another
incident on October 17, 1991, resulting in a charge of
failing to properly protect company equipment. Hearing on
that matter was postponed until November 20, 1991. On
December 6, 1991, the charge was sustained and Claimant was
issued a five-day deferred suspension. On the same day, the
instant charges against Claimant were sustained and Claimant
was issued a thirty-day actual suspension and ordered also
to serve the five day suspension which had been deferred.
Both decisions were made by the Department Head Engineering.
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Claimant observes that he was not solely responsible
for fouling track 2. Claimant contends that he should not
have received more severe discipline than the three other
employees who were also charged in the incident. Claimant
argues that Carrier improperly relied on his five day
deferred suspension to justify imposing a more severe
penalty in the instant matter. Claimant contends that the
penalty in the instant matter must be based on his record as
it was entered into evidence at the investigation, i.e., a
record which showed no prior discipline. In Claimant's view
he is the victim of improper disparate treatment.
Carrier observes that Claimant admitted that he entered
track 1 without proper authorization. In Carrier's view,
this admission conclusively established that Claimant was
guilty of the charges against him.
Carrier disputes Claimant's allegation of disparate
treatment. Carrier observes that the other employees had no
prior discipline, whereas Claimant had received a five day
deferred suspension. Carrier contends that Claimant's
deferred suspension justified the discipline imposed in the
instant case, particularly because, in Carrier's view, it is
not possible to give two deferred suspensions in a row.
Carrier argues that it did not violate Claimant's due
process rights even though Claimant's personnel record, as
introduced at the hearing, showed no prior discipline.
Carrier contends that the peculiar timing of the proceedings
leading up to the five day deferred suspension made it
impossible to have produced that aspect of Claimant's record
at the hearing. According to Carrier, Claimant's discipline
was progressive and, therefore, was proper.
The Board finds that the record established that
Claimant was guilty of the charges. All of the evidence in
the record, including Claimant's own testimony, showed that
Claimant entered track 1 without authorization. Although
other employees acted similarly, Claimant cannot, and does
not, rely on their actions to excuse his own miscond~ct.
The only issue raised by this claim in the quaatum of-'
discipline imposed.
Carrier relies on Claimant's prior five day deferred
suspension to justify the discipline imposed. Claimant
contends that this was improper because his personnel
record, as introduced during the investigation, showed no
prior discipline. Based on the peculiar, perhaps unique,
facts of this case, we agree with Claimant's position. -
Claimant's personnel record as introduced in the
investigation of the charges at issue in this proceeding
showed no prior discipline. Of course, it would have been
impossible for the five day deferred suspension to have
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appeared on his record at that time because the
investigation of the incident which led to that discipline
did not occur until the following day.
The decisions on both investigations were made the same
day by the same Carrier official, the Department Head
Engineering. It would appear that he reviewed the November
20 investigation first and imposed a five day deferred
suspension. Subsequently, on the same day, he reviewed the
November 19 investigation and relied on his prior decision
to impose a thirty day actual suspension along with the five
days which he had just previously deferred.
The discipline in the instant case was progressive only
in an extremely mechanical sense. Progressive discipline,
however, is designed to serve a corrective purpose.
Disciplinary action emphasizes to an employee the
seriousness of his misconduct or performance deficiencies
and warns him that if he does not correct his behavior, he
will be subject to more severe sanctions. The use of a
deferred suspension further serves a corrective purpose by
warning the employee that any rule violations during the
year following the suspension will not only subject him to
further sanction but will also result in his having to serve
the deferred suspension.
When a deferred suspension issued earlier in the day is
used to justify an actual suspension issued on the same day,
the employee is denied any of the corrective benefits of the
deferred suspension. The suspension deferral is illusory
because it will be converted to an actual suspension
immediately following
the second disciplinary action of the
day. Moreover, the actual suspension imposed in the second
disciplinary action cannot be justified on the ground that
the employee's misconduct occurred despite his having
previously been warned by a lesser disciplinary action to
cease violating the rules. Under these circumstances, we
conclude that the thirty day actual suspension was excessive
and order that it be reduced to a thirty day deferred
suspension and that Claimant be compensated for his lost
time.
AWARD
Claim sustained in accordance with the findings.
_ 5~qq -q
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ORDER
Carrier is ordered to comply with this award within
thirty (30) calendar days of the date two or more members
affix their signatures thereto.
A-t #- /4L
Martin H. Malin, Chairman
Carrier Member Organization Member
Dated at Chicago, Illinois, December 21, 1992.
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