PUBLIC LAIN BOARD NO. a$50
Award No, ~
Case No. 164
(Brotherhood of Maintenance of Way Employes)
- 4
TH OlS.E'UTE:
(The Burlington Northern Santa Fe Railroad
S.T,A.T.~.M"~..~J QF CLAIM:
1. The Carrier violated the Agreement when on November 11, 1999,
Mr. R. P. Edwards was assessed a Levehl Farina! Reprimand far his
alleged violation of Engineering Instruction 22.5 and Rules 1.15 and 1.13
of the Maintenance of Way Operating Rules Effective January 31, 1999 as
revised in conjunction with his alleged absence tram duty without authority
on September 27, 28 and 29, 1999.
2. As a consequence of the Carrier's violation referred to above, the
Claimants shall have they Level-1 Formal Reprimand removed from his
record.
Upon the whole record and a!! the evidence, the Board finds that the parties 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.
Claimant did not work September 27, 28 and 29, 1999* nor had he authority to be off.
An investigation was scheduled for October 7, 1999 which Claimant did not attend, nor did
the Organization. The evidence adduced thereat clearly established Claimant's culpability for the
charges assessed.
Although Claimant did not sign for the letter establishing the investigation, the Carrier
discharged its obligation under the Rule by depositing in the mail the notice properly addressed
with a request for a signed receipt of acceptance.
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The local representation who was fumlshaci a copy of the notice is not, according to the
group representing the Claimant, the proper representative as required by the parties' collective
bargaining agreement In analyzing this contention, thin Board reviewed the applicable collective
bargaining provision, specifically, Rule 40
INVESTIGATIONS ANO APPEALS
paragraph (c), which
states in part:
'At fast five (5)
days advance written notice of the investigation shall tie given the
employe and the
appropriate local organization representative, in
order that the
employs may arrange far
representation by a duly authored representative of any
employe of hip chaise, and for preserve of necessary witnesses he may desire."
The above provision was tad ty the Organization in support of its contention. In addition,
the Organization stated
in its appeal to the
Carrier, the following:
"The Claimant is a former ATSF employee and is a member of the ATSF System
Federation, Career
alt$gedty notified Vice Genera!
Chairman Tony Archibald of the
BlV System Federation of this Investigation, Rule 4t7fc) of
the 1982 8N Agreement
requires the Carrier to
noW
the approprfirie Local ar"nlzatlon
Ropnaerrtatfve.
Mr. Archibald is not the appropriate kral organization representative."
!n response to this allegation, the Carrier responded as follows:
_Routinely, when hearings are scheduled, the Carrier notrt`~es tire local
representative or a system representative that
regularly represents
employees in
investigations
of the location where the alleged Rule violation occurred.
In this
case the terrier scheduled the
hearing at Galesburg, Illinois and in cases where
a hearing is scheduled
in that area of the Railroad the
Carrier notified Vice General
Chairman Archibaid.'
In reviewing
the
record of
this case, the Board did not find any evidence that the
Organization;
(1) refuted the Carrier's contention that it followed an established
practice;
(2) challenged or objected to such a practice; or
(3) Provided
an
explanation haw Rule 40 (c) prohibits such a practice
and/or haw the
rule was violated when notice was sent to Vice
General Chairman Archibald who is a "local" representative in the
area
where
the investigation was held.
P(-.R
N
Whether or not the Organization could prove that the Carrier's handling in this case was
not the practice routinely followed; could show that it has objected to such handling in the past;
or provide a clear explanation why Rule 40 {c} was violated in this particular case, this hoard does
not know and will not speculate. The paint to recognize in this case is, the Organization did not
provide such information. As such, there is no basis in this case for the Board to find the Carrier
in violation of Rule 40 {c} of the parties' collective bargaining agreement.
Claimant was absent without authorization
for September 27, 28
and 29, 1999. A formal
reprimand has been assessed. Evidence adduced at the haring fully supports the charges.
Clam denied
QRDER
This Board, after consideration of the dispute identified above, hereby orders that an award
favorable to the Claimants) not be made.
Robert !.. Hicks, Chairman & Neutral Member
Rick B. ehrG, labor Member
Dated:
A
Ls~t,~_t"f'
*"f~o~mas
M. Rohling,~Ca-rner M~u~er