PUBLIC LAW BOARD NO. 5660
(Brotherhood of Maintenance of Way Employee
PARTIES TO DISPUTE:
(The Burlington Northern Santa Fe Railroad (Former
(ATSF Railway Company)
STATEMENT OF CLAIM-
I . The Carrier violated the Agreement on June 2, 2004, when it issued
the Claimant, Mr. B. S. Cruz, a Level-S, 30-day record suspension
and 3-year probation for alleged violation of rules 1.6, and 1.13 of
the Maintenance of Way Operating Rules, and the removal of his
Group 3 Class 1 Foreman rights for a period of one year from June
4, 2004 to June 4, 2005.
2. As a consequence of the violation referred to in part (1), the Carrier
shall Immediately remove any mention of this Incident from his
personal record, Restore his seniority rights, and make him whole
for all lost wages, Including any difference in pay while his seniority
has been wrongfully suspended.
FINDINGS
Upon the whole record and all 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.
In an undated letter, the Carrier wrote Claimant advising of an Investigation being
established on December 11, 2003:
"...for the purpose of ascertaining the facts and determining your
responsibility if any, In connection with your possible violation of Rules
1.6, 1.13 and 1.15 of the Maintenance of Way Operating Rules, in effect
January 31, 1999 as supplemented or amended, concerning your alleged
falsification of an employee's time on November 7, 2003, when employee
was released early due to personal emergency and paid for the full shift In
addition to your alleged failure to comply with instructions concerning your
releasing of BNSF employees under your supervision without proper
authority prior to the end of their shift on November 22, 2003, while working
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Case No. 268
as Foreman on Surfacing gang, on the Panhandle Subdivision, Kansas
Division.'.
The Investigation was postponed to be held on March 5, 2004. On March 5,1004,
the Investigation went through the opening usually found In all Investigations. After
Identifying all participants, the Investigation was again postponed until March 19, 2004,
account Illness of the officer scheduled to hold the Investigation.
The investigation was finally held on May
6,
2004. The Carrier at that opening
Introduced what they term a correction letter referring to tire original notice of an
Investigation indicating the second alleged violation occurred on November 21, 2003, not
November 22, 2003, as contained in the original notice.
Following the Investigation, the Carrier In the belief it had furnished sufficient
evidence of Claimant's culpability for the charges, assessed Claimant a 30 day record
suspension and a one year's suspension of his G3C1 Foreman's rights effective at the
close of shift on June 4, 2004.
The Organization challenged Carrier's right to discipline setting forth various
reasons. First, they complained about the location as train traffic did create sounds that
drowned out some responses in the tape that was recorded as inaudible. This can be,
and has been in the past, a problem, but the several inaudibies found had no significant
bearing on the Investigation.
The second challenge was Carrier combining two incidents in one notice. To this
Board, that
is
not a challenge. if anything It Is an effort to conserve time and money.
Besides, both charges were similar in nature.
The Organization also challenged the notice contending that it was vague, but this
Board had no trouble determining what the charges were based upon the Rule cited.
The fourth challenge was the date the second violation allegedly occurred. Right
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Award No.
Case No. 268
from the first, the date was listed as November 22, 2003, and was not corrected until
Carrier's letter of March 9, 2004, to read November 21, 2003.
Had the Carrier not corrected the notice and opened the Investigation with the
date of November 22, 2003, and then discovered It should have been November 21, this
Board would have dismissed the second charge, but because the Investigation was not
hell until May B, 2004, the Claimant and his representative had adequate notice of the
correct date. They were not blindskled.
The Carrier did provide sufficient evidence of Claimant's culpability for the
charges assessed. Specifically, for November 21, 2003, he did release the crew early
without the OK of the Construction Roadmaster, then paid them all a full day's pay.
On November 7, 2003, an employee came to the Foreman with a family emergency
problem and was excused early, yet the Claimant paid him a full day's pay.
A Foreman has definite responsibilities and is paid accordingly. One
responsibility is making out the payroll. The Carrier expects the payroll to be corned
The Foeman has no authority to claim hours for his crew that they did not work. Even if
it Is on a Friday and there was no possibility of that crew to get track and
tine
prior to
their regular quitting time.
Every employee on the Carrier has a Supervisor he reports to and each is
expected to react as directed. Claimant cannot, particularly after receiving instructions
not to authorize early quits without his Supervisor agreeing thereto. This Is ClalmanYs
second event of not complying with instructions. Under the circumstances, this Board
will not disturb the discipline.
AWARD
Claim denied.
Award No.
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Case No. 268
ORDER
This Board, after consideration of the dispute Identified above, hereby orders that
an award favorable to the Claimants) not be made.
Robert L Hicks, Chairman & Neutral Member
Rick B. Wehrli, Labor Member lilam L, eck, Can Member
Dated.
APR-14-2605 THU 11:22RM ID: PRGE:4