PUBLIC LAW BOARD NO. 5335
AWARD NO. 1
Case No. 1
PARTIES) United Transportation Union
TO )
DISPUTE) Duluth Missabe & Iron Range Railway Company
STATEMENT OF CLAIM:
Claim for Conductor Donald J. Long, allowing all lost
earnings, including Crew Consist Payment and Productivity
Sharing Allowance, and that credit for Railroad Retirement,
Carnegie Pension Fund and or Transtar Pension Fund be
afforded, and that all mention of this matter be expunged
from the claimants record. That all monies lost and
retrieved, be made available by separate check. This claim
results from suspension served for the alleged violation- of
Rule 4820 of the Consolidated Code of Operating Rules,
Edition of 1980.
(From Organization's Submission)
FINDINGS:
Upon the whole record, after hearing, the Board finds the
parties herein are Carrier and Employees within the meaning of
the Railway Labor Act, as amended, and that this Board is duly
constituted under Public Law No. 89-456 and has jurisdiction of
the parties and the subject matter.
By letter dated November 14, 1990, Claimant was notified by
Carrier to be present at a formal investigation to be held at
10:00 A.M. on November 21, 1990, and that he was being
"...charged-with violation of Rule No. 820 of the Consolidated
Code of Operating Rules, Edition of 1980,-for failing to expedite
departure of your train without avoidable delay on the 4:00 A.M.
Minorca Road Extra on Wednesday, November 7, 1990."
After two (2) Organization requests for postponement were
granted, the formal investigation was held on December 6, 1990,
beginning at- 10:03 A.M. and concluding at 12:43 P.M.
By letter dated December 20, 1990, Carrier's Hearing officer
advised Claimant that, based upon the transcript of the formal
investigation, he had been found to have violated Rule 820-and,
as a result, he was being suspended from work for a period of ten
(10) calendar days commencing Monday, December 31, 1990.
The organization appealed the Hearing officer's decision
through the normal appeal procedure, including conferences with
the Superintendent and the Director of Personnel and Labor
Relations. The Organization's final appeal was denied by the-
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Director of Personnel and Labor Relations by letter dated April
4, 1991.
On May 23, 1991, the parties wrote an agreement to establish
this Public Law Board to handle this case and a companion case,
also involving the same claimant. On December 4, 1992, the
organization requested the-National Mediation Board to appoint a
neutral member to serve as Chairman of the Board.
On January 28, 1993, the National Mediation Board made such
appointment. Hearings were held in Duluth, Minnesota on March
23, 1993.
PROCEDURAL ISSUE:
The Carrier raised a procedural issue which must be
addressed before proceeding. Carrier urges that this case be
dismissed under the Doctrine of Laches because the Organization,
following execution of an agreement to establish this Public Law
Board, with Cases No. 1 and 2 listed on Attachment "A" thereto,
allowed 18 months to pass before taking any further affirmative
action to actually arbitrate these cases. Carrier maintains that
this elapsed time is excessive and demonstrates that " ..little
importance is attached to the dispute by the Organization."
Carrier cites Award 1-20650, which reads in pertinent part below,
to support its position:
"... acquiescence arises where a person who knows that he is
entitled to enforce a right neglects to do so for such a
length of time that, under the facts and circumstances of
the case at hand, the other party may fairly infer that he
has waived or abandoned his right."
The Organization counters by arguing that 18 months was not
an inordinate delay and that the cases were handled as
expeditiously as possible in light of the fact that the
Organization had a new General Chairman, who was a working
chairman.
The Board notes that the parties agreed to establish this
Board by agreement, dated May 23, 1991. Paragraph (D) of such
agreement provided for the procedure to be followed to select a
neutral member for this Board. The record is void of any
information regarding what, if any conferences or discussions
were held by the parties to select such neutral member. Because
both the Carrier and the Organization are parties to this
agreement, they have a mutual responsibility to follow the
procedures which they have agreed to. The agreement provides
that if the parties are unable to agree upon a neutral member,
"...either member of the Board may request the National Mediation
pea
sa3s
Board to appoint the Neutral Member and Chairman." The Carrier
contends that the Organization, as the moving party, has the
responsibility t-o expedite cases to be arbitrated. The Board
does not disagree with this position of the Carrier. However,
the Board is of the opinion, that once the Organization requests
the Carrier to join with them in establishing a public law board
and the Carrier agrees to do so, as in this case, the parties to
the agreement establishing such board then have equal
responsibility in seeing that the process established by such
agreement is expeditiously followed. If Carrier believed that
the elapsed time following the May 23, 1991 Agreement was placing
it in an adverse position, it had the right to make a request to
the National Mediation Board to appoint a neutral member, the
same as the organization, yet they elected not to do so. A party
to an agreement may not sit upon their rights and then contend -
that they have been disadvantaged as a result of their decision
to not exercise such rights. Under the circumstances, this Board
cannot conclude that this case, and it's companion case, should
be dismissed under the Doctrine of Laches.
CARRIER'S POSITION:
It is Carrier's position that the record clearly shows that
Claimant's actions on the 4:00 A.M. Minorca Road Extra on
November i, 1990, resulted in excessive delay to his train, and
as conductor, he bears responsibility for this excessive delay,
in violation of Rule No. 820 of the Consolidated Code of
Operating Rules, which reads as follows: -
"820. Members of the crew must by personal attention make
every effort to insure departure of their train without
avoidable delay. They must expedite the movement of trains
and performance of station work."
Carrier's charge of excessive delay was based upon
Claimant's service slip from that date which claimed 55 minutes
(4:00 A.M. - 4:55 A.M.) initial terminal delay.
Carrier argues that Claimant performed certain inspection
tasks which Carrier did not require or desire Claimant to
perform. Claimant's train had been inspected by carmen prior to
the departure time, yet Claimant checked the last five (5) cars
instead of just the rear car while performing the rear-end set
and release air brake test, which was all that was required under
Carrier's operating rules. Then Claimant checked his entire
train for set handbrakes and piston travel.
Secondly, Carrier argues that Claimant chose to reserve to
himself the task of securing a track warrant, although Carrier's
rules permit any crew member to secure track warrants. Carrier
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contends that if Claimant had allowed another crew member to
attempt to contact the train dispatcher to secure a track warrant
at 4:15 A.M., instead of waiting until Claimant boarded the
engine, the crew might have gotten prompt permission to proceed.
Finally, Carrier refers to a previous handling with Claimant
involving a charge of excessive delay, which was resolved in a
pre-conference before a formal investigation, in December 1988.
Carrier states that during such conference, Claimant and his
representative had agreed to a standard of 30 minutes as being an
expected and reasonable time allowance for getting trains out of
town. Carrier contends that the 55 minutes reported by Claimant
on his service slip is nearly twice the "standard" of 30 minutes
and thus constituted an excessive delay, in violation of Rule
8?0. Based upon Claimant's employment record, the discipline of
suspension-for ten (10) days was warranted. Carrier argues that
it has met its burden of proof and seeks a denial or dismissal
award from this Board.
ORGANIZATION'S POSITION:
The Organization submits that Claimant complied with Rule
820, and argues that Carrier has not met its burden of proof.
The evidence which Carrier relied upon was circumstantial and was
based upon presumption, not facts.
The organization argues that Carrier's Assistant
Superintendent's testimony that the crew should only take ten
(10) minutes to leave the yard office is merely Carrier's
arbitrary interpretation and is not based upon any rule. The
Organization contends that the fifteen (15) minutes which
Claimant required before departing the yard office was necessary
for him to properly prepare for his tour of duty and was
reasonable, not an excessive, amount of time. -The Organization
further contends that the Assistant Superintendent's testimony on
preparation time was not credible, as evidenced by his testimony
during cross=examination.
The Organization points to the fact that Claimant used his
personal vehicle to go from the yard office to the rear of his
train for the initial air brake test and then again used his
vehicle in making an observation of his train, rather than
walking the train or having the train pull forward and then
backing up to pick up the Claimant. According to the
Organization, this demonstrates that Claimant was trying to
expedite the departure of his train, rather than delay it. The
Organization states that while Claimant's method of preparing histrain for departure may have been different than the way other
Carrier officers may have done it, Claimant's method was a
conscientious one and was rational.
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The organization takes exception to Carrier's insistence
that crew members look only at the last car when making a set and
release initial air brake test. The Organization contends that
Carrier's approach is contrary to all sound practices. Claimant
and his fellow crew members are responsible for seeing that their
train is safe to depart the terminal. The Organization contends
that Claimant's actions in checking the last five cars to be sure
there were no hand brakes set and observing his train as he drove
his vehicle to the head end of the train was not only
conscientious, but consistent with other Carrier rules, such as
Rule 109(A), 109(B) and 713(E), which all deal with train crew
members making walking and/or roll-by inspections of their train.
The Organization also objects to the Carrier holding the
Claimant responsible for the delay resulting from Claimant's
inability to get a response from the dispatcher to obtain a track
warrant. The Organization argues that Carrier's contention, that
if another crew member had attempted to contact the dispatcher
the delay might have been avoided, is mere speculation by the
Carrier. The organization defends Claimant's decision to obtain
the track warrant personally and contends that it demonstrates
Claimant's responsible attitude. Besides, Claimant did not, by
order or direction, "disallow" any other crew member from taking
the track warrant.
The Organization also makes reference to the amount of delay
experienced by other crews. Even though other crews have taken
an equal or greater amount of time to depart the terminal, no
other crews have been charged or disciplined for excessive delay
to their trains. In addition, the Organization argues that the
fact that Claimant was the only member of the crew charged with a
violation of Rule 820, even though Rule 820 states that all crew
members are responsible for not delaying their trains,
demonstrates that Carrier has singled out the Claimant for
disparate treatment-and that the Carrier had pre-judged the
Claimant.
Finally, the Organization seeks to have Carrier's discipline
of Claimant set aside because the Carrier failed to give Claimant
a fair and impartial hearing. The Organization contends that
Claimant was deprived of the opportunity to present certain
testimony and evidence which would have bolstered his defense.
First, the organization objects to the fact that Carrier did not
make audio tapes of radio transmissions and engine speed tapes
available at the hearing, even though the organization says they
requested them. Secondly, the brakeman on the crew, P. S.
Malknecht, was not present at the hearing. The Organization
contends that Carrier has a responsibility to make certain that
all witnesses having knowledge of the events under investigation
are available to testify and also to provide the audio and speed
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tapes, as requested. By failing to do so, the organization
argues Carrier did not afford Claimant a fair and impartial
hearing and the discipline assessed by the Carrier roust be set
aside.
The organization also contends that Carrier erred in
considering the previous incident in 1988 in assessing discipline
against Claimant. They argue that the Carrier could not rely on
the 1988 handling because following the pre-conference, carrier
canceled the investigation. Claimant received no discipline and
signed no letter which would have permitted Carrier to make an
adverse entry on his record.
In conclusion, the organization argues that Carrier did not
meet its burden of proving that Claimant violated Rule 820, did
not grant Claimant a fair and impartial hearing and that Claimant
actions on November 7, 1990, were in compliance with Carrier
rules.
OPINION OF THE BOARD:
The Board will first address the Organization's procedural
objections. With regard to the absence of brakeman Malknecht at
the formal investigation, the record of the hearing shows that
brakeman Malknecht was on vacation at the time of the hearing.
Carrier's Hearing Officer raised this matter both at the
beginning and near the end of the hearing. He offered two
options to Claimant and his representative: (1) Mr. Malknecht
could submit a written statement which would be made -a part of
the hearing record or the hearing could be recessed and
reconvened with Mr. Malknecht present so that he could be
questioned as a witness. Claimant stated:
"I think, being as I'm the one that's charged, I'll take
responsibility. I was the conductor on the job. With the
testimony I've heard here today, I don't know that there's
anything Mr. Malknecht could add to it . . . ."
(Tr., page 48)-:-
When the Hearing officer asked Claimant's representative
if he was in agreement with the Claimant's position, his
representative replied:
"I stand by my summation or my summary. It is Don's option
to release Paul from testifying. As far as any reconvening,
I don't see any need to. In other words, whatever I put
into my summary, stays. I'm still objecting to the fact
that the witnesses were not made available. I'm not
contesting Don's ability to and wish to eliminate Paul as a
witness at this particular moment." (Tr., page 48).
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it is the Board's opinion that every effort should be made
to have all witnesses present at a hearing; however, in some
cases that may not be possible. The Board believes the Carrier
made a good faith offer to Claimant and his representative to
enable them to obtain testimony from Mr. Malknecht by recessing
and reconvening. Claimant clearly indicated that he did not
desire to avail himself of that opportunity. Claimant's
representative had the right to accept Carrier's offer to recess
and reconvene, but instead acquiesced to Claimant's decision to
not accept Carrier's offer. In so doing, the organization
clearly waived its right to object to the fact that Mr. Malknecht
did not appear to offer testimony at the hearing.
As to the speed tape, the record is void of any information
as to when or if the Organization requested Carrier to produce
the engine speed tape. Carrier denies receiving any request for
the speed tape prior to the hearing.- This Board cannot resolve
disputes in facts which have not been documented in the record.
The Board has no basis to uphold the organization's procedural
objection regarding the speed tape.
Finally, with regard to the audio tape of radio
transmissions, Carrier stated in the record that audio tapes are
routinely recycled on a seven day basis. Since Carrier had
received no request for the audio tape to be made available
within one week, the tape was re-used and the radio transmissions
recorded on November 7, 1990,
were copied over. The
Organization
representative requested the
audio tape on November 17, 1990.
The
Board
believes
that when Carrier is contemplating
disciplinary action in which radio transmissions may be pertinent
to the matters under investigation, it would be prudent for them
to preserve such tapes regardless of whether they have received a
specific request to produce them. However, in this case;-the
absence of the audio tapes leaves the record with only the
testimony of Claimant as to his efforts to reach the train
dispatcher to obtain a track warrant. The Carrier has not
seriously challenged Claimant's testimony, therefore it stands
largely unrefuted. Under these circumstances, the Board cannot
find that Carrier's inability to produce the audio tape at the
hearing was prejudicial to the Claimant.
Moving to the merits, Carrier's Hearing officer found
Claimant guilty of violating Rule 820, based upon the following:
(1) Claimant spent fifteen minutes in the Proctor Yard Office
rather than ten minutes; (2) Claimant spent at least five minutes
inspecting his entire train while the rest of the crew waited,
which was not required by Carrier's rules and which was contrary
to Carrier's wishes; and (3) Claimant delayed his train from 4:15
A. M. to 4:30 A.M. by refusing to allow the engineer or the
brakeman to copy a track warrant.
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It should be noted at the outset that Carrier's principal
witness, the Assistant Superintendent, was not present when
Claimant's crew prepared for and departed from Proctor Yard on
November '., 1990. He testified that he was on vacation at that
time. Therefore, the Assistant Superintendent's testimony was
limited to providing his opinion, based upon his years of
experience, as to the amount of time it should normally take for
a crew reporting for duty to depart the yard on their road
assignment. His testimony is general in nature and he had no
knowledge of any unusual circumstances or conditions which
Claimant and his crew might have encountered on the morning of
November 7, 1990.
With regard to the amount of time consumed by the Claimant
in preparing to leave the yard office, claimant testified that he
checked the register, registered out, checked his watch, went
over the bulletin book, picked up his radios and picked up a
supply of water to be placed on the engine. He_testified that
these activities consumed approximately fifteen (IS) minutes and
that he departed the yard office at approximately 3:45 A.M. The
Board believes that Carrier must have more than generalities and
time estimates upon which to conclude that Claimant's activities
between 3:30 A.M. and 3:45 A.M. were improper and consumed an
excessive amount of time. Since the record is void of any
testimony or evidence which suggests that Claimant engaged in
other-than-normal preparatory activities, the Board cannot find
that the Carrier had sufficient evidence to conclude that
Claimant's departure from the yard office at 3:45 A.M. was in
violation of Rule 820.
Next, we look at the Hearing officer's finding that Claimant
delayed his train by five (S) minutes by doing unnecessary and
undesired inspection of his train. Claimant testified that he
was at the rear of his train before 4:00 A.M. and that he
received a radio transmission from his head brakeman at 4:05 A.M.
advising that the engine was on the train and that they could
commence their initial terminal air brake test. He further
testified that the air brake test was completed by 4:10 A.M. and
that he proceeded to drive his personal vehicle to the head end,
observing his train as he went. Although Claimant stopped twice
to knock off sneaker brakes, he testified that he reached the
head end at 4:15 A.M.-and instructed the engineer to begin moving
his train. Carrier's Assistant Superintendent testified that he
believed that if the air brake test was started at 4:00 A.M., the
air brake test could be completed and the crew ready to get their
track warrant at 4:15 A.M. and that the rear brakeman could walk
the train and be ready to depart at 4:20 to 4:25 A.M. By
Claimant's testimony, the air brake test and inspection were
completed at 4:15 A.M. and the train began moving. The Board
cannot find any evidence or testimony to support Carrier's
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Hearing officer's finding that Claimant's actions in conducting
the air brake test and inspection of his train created a delay in
the departure of his train in violation of Rule 820.
Finally, in looking at Carrier's determination that Claimant
delayed-the departure of his train by fifteen (15) minutes by
refusing to allow other crew members to copy a track warrant, we
find that Claimant testified that after instructing the engineer
to proceed, he drove his personal vehicle to the scale and
boarded the engine at 4:25 A.M. After getting his clip board
with track warrant forms, he began calling for the dispatcher at
approximately 4:30 A.M. He testified that the train was still
moving at this time. He called for the dispatcher three (3)
times, without success. After waiting a few minutes, he tried
three (3) more times, with equally no success in reaching the
dispatcher. After another short wait, he began calling for the
dispatcher a third time, reaching him on the second attempt in
this sequence; at approximately 4:42 A.M. By this time, the
train had had to slow down and eventually came to a halt, with
the head end beyond M.P. 9.25 and short of the approach circuit
at Adolph. As soon as Claimant reached the dispatcher and began
to copy the track warrant, the train began moving again. The
track warrant was completed at 4:44 A.M. and the train entered
the approach circuit at Adolph at 4:46 A.M. and track warrant
territory at Carson at 4:53 A.M. The Carrier's Hearing officer
did not take .exception to Claimant's testimony regarding his
inability to get in touch with the dispatcher between 4:30 A.M.
and 4:42 A.M., but rather concluded that Claimant had refused to
allow his engineer and brakeman to copy the track warrant and
that had he done so, the other crew members could have been
calling for the dispatcher between 4:15 A.M. and 4:30 A.M. and,
therefore, might have been able to have copied the track warrant
without delaying the departure of the train. First, the Board
finds that under Carrier rules, any crew member can copy a track
warrant, which in effect gives the conductor the discretion of
copying the track warrant himself or having other crew members
copy it. Claimant testified that he preferred to copy the track
warrant himself, and therefore waited until he boarded the engine
to contact the dispatcher. This decision by Claimant was not, in
and of itself, a violation of Carrier's rules. Arguably, if
Claimant had reached the dispatcher on his first attempt, there
would have been no delay to his train. There is nothing in the
record to show that Claimant could have known or should have
known that he would have difficulty reaching the dispatcher to
obtain his track warrant. The Organization has also argued that
Carrier's assumption that if another crew member had attempted to
contact the dispatcher earlier, they would have been able to get .
their track warrant without delaying their train, was mere
speculation on the Carrier's part. The Board agrees with the
Organization. There is no evidence in the record to support such
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conclusion, in fact the Assistant Chief Dispatcher testified:
"But, I was also busy on the Interstate Branch. At, between
4:20, 4:25, I was talking to an all-rail which was on-duty
at South Itasca and I logged him onto my train sheet at 4:30
a.m. That's when he appeared on my CTC board, on the
approach circuit. At 4:39 a.m., I logged a DWP train
leaving Pokegama Yard onto my approach board on the CTC
panel. I logged him onto my train sheet. So, excuse me, if
they were calling me between that time, as far as I recall I ,
was at the desk. It's possible that I may have been out to
go to the bathroom too: . .--:" (Tr., page 39)
Carrier's submission even states that: "Had the Dispatcher
been contacted at 4:15 A.M., rather than at 4:30 A.M., the crew
might well (emphasis of Board). have had prompt permission to -
proceed." Claimant is not omniscient. He had no way of knowing
at precisely what time the dispatcher would be free to issue his
track warrant. The Board believes it is unreasonable for
Carrier, using 20 - 20 hindsight, to hold Claimant responsible
for the delay caused by his inability to make contact with the
dispatcher to obtain a track warrant, despite numerous efforts to
do so.
Based upon all of the above, the Board finds that the
Carrier has not met its burden of proof, in the record, to find
Claimant guilty of violating Rule S20 on the morning of November
7, 1990, and the discipline assessed Claimant must be set aside.
The Discipline Rules and Procedures Agreement, dated
February 2, 1982, provides for payment of a minimum of four (4)
hours at the rate of pay applicable to the last service performed
(Section E. 2.) and pay for all time lost for the period of time
of suspension (Section F. 4.). The Board can find no rules -
support for that part of the Organization's claim seeking Crew
Consist Payments and Productivity Sharing Allowance and credit
for Railroad Retirement, Carnegie Pension Fund and/or Transtar -
Pension Fund along with payment being made by separate check.
Therefore those portions of the claim are denied.
AWARD: Claim for removal of ten (10) day suspension from the
record of Claimant D. J. Long and payment for all time lost
resulting from such suspension is sustained. Claims for all
other benefits not provided for in the Discipline Rules and
Procedures Agreement are denied.
ORDER: Carrier is hereby ordered to- comply with the above award .
within thirty (30) days from the date of this award.
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R. E. Adams, Carrier Member Bruce wigent, Organi tion Member
Jo F Hennecke, Chairman and Neutral
Dated:
ZA
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