(Brotherhood of Maintenance of Way Employee
PARTIES TO DISPUTE:
- - _'
(The Burlington Northern Santa Fe Railroad
STATEMENT OF CLAIM
:
1. That the Carrier's decision to issue a Level 1 Formal Reprimand
and three year probation to J. L. Friar was unjust. -2. That the Carrier now rescind their decision and expunge all
discipline, and transcripts and pay for all wage loss as a result
of an Investigation held 9:00 a.m. on October 20,1989 continuing
forward and/or otherwise made whole, because the Carrier did
not introduce substantial, credible evidence that proved that the
Claimant violated the rules enumerated in their decision, and
oven H the Claimant violated the rules enumerated to the
decision, Formal Reprimand la extreme and harsh discipline
under the circumstances.
3. That the Carder 'violated the Agreement
partlcutartybut not
limited to Rule 13 and Appendix 11, because the Carrier did not
introduce substantial, credible evidence
that'
proved the Claimant
violated the rules enumerated in their decision.
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ENDINGS
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Upon the whole record and all the evidence, the Board finds that the parties
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herein are carrier and employee within the-meaning of the Railway Labor Act, as
amended. Further, the Board Is duly constituted by Agreement, has jurisdiction of
the Parties and of the subject matter, and the Parties to this dispute were given due
notice of the hearing thereon.
On September 1,1988, the Carrier issued Claimant a notice of an Investigation
to be held on September 17,1999, to: _,
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Page 2 Award No.
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Case No. 134
"...develop all facts and place responsibility, If any, concerning your
alleged being argumentative and quarrelsome, on August 20, 1999, at
MP 801.8, near Hereford Texas, while working as backhole operator on
construction gang 23818."
The Investigation was postponed by mutual consent from Its first scheduled
date of September 17, to October 8, to October 20,1888. In the meantime, Claimant
through his representative requested a number of witnesses. As of the final date of
the investigation, every one of the witnesses requested ware present except
Claimant.
`-
Annarentlv at 8:00 AM. the scheduled starting time.
Claimant was not present.
His representative located him at the point where he
was working. Claimant
apparently advised his representative that he was unaware that the Investigation was
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scheduled for October 20,1999, but that
he
could be there in 60 to 80 minutes. His
representative did than request
a postponement,
which
was denied by the Carrier.
The Conducting Officer proceeded to hold the Investigation over the protests of his
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represantativa.
The evidence adduced from the Investigation was overwhelming against
Claimant His peers testified he went off
on
the Foreman for no reason that anyone
who witnessed the tirade could discern. The Foreman was not harassing Claimant,
nor was he demeaning. The Foreman simply called out to Claimant and ones other
to join in a job safety discussion, a prerequisite before commencement of any daily
work
or
assignment.
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Page 3
., Award No. t3 y
Case No. 134
For reasons
only known to Claimant, he took exception to being called or to
the manner in which he was called to join the job safety discussion.
The Investigation clearly reflects that Claimant had worked for and had earned
the discipline he was assessed, and this Board would have upheld the assessment
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had It not been for one glitch in the proceedings, and that was for not holding up the
Investigation for the 60 to 90 minutes It would have taken Claimant to travel from the
work site to the site of the Investigation.
The Board understands that the Carrier's obligation is to notify Claimant of
the charges and pursuant to the
Anroeroe~t
language! this is done by certified mail,
return receipt. The notice of the October 20` rescheduled date was sent in ample
time to Claimant's last recorded address (as had the previous notices), but for
whatever reason,
'he
professed-non-receipt thereof. The right to attend belongs to
the Claimant. He has the choice and failure to attend Is done usually at the peril of
the accused. In this instance, Claimant indicated he wanted to be there. What he
could have attested to that would have negated the testimony of ail the other
witnesses Is beyond guessing at, but nevertheless, the hearing could have been
delayed the 60 to 90 minutes it would have taken Claimant to be present.
For this reason, the record mark is to be removed from his disciplinary file,
and said assessment is to be considered as a letter of caution.
Page 4
pc:~. ~a - 5ss0
Award PJo. i3Y
Case No. 134
AWARD
Claim sustained In accordance with the Findings.
ORDER
This Board, after consideration of the dispute identified above, hereby orders
that an award favorable to the Claimants) be made. The Gamier is ordered to make
the award effective on or before 30 days following the date the award is adopted.
Robert L Hicks, Chairman & Neutral Member
L
Rick B. ehrli, labor Member
Dated:
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