PUBLIC LAW BOARD NO. 5850
Award No.
Case No. 321
(Brotherhood of Maintenance of Way Employes
(The Burlington Northern Santa Fe Railroad (Former
(ATSF Railway Company)
STATEMENT OF CLAIM:
1. The Carrier violated the Agreement when Claimant, W.L. Burns was
given a Level S thirty day Record Suspension when the Carrier found
the Claimant in violation of Rule 1.8 - Conduct for allegedly being
confrontational and quarrelsome, when the Claimant only asked
about his
payroll. The Carrier praserded no creditable evidence the
Claimant was confrontational, nor quarrelsome. The Claimant
should be reinstated with seniority, vacation, all rights unimpaired
and pay for all wage loss commencing November 1, 2007, continuing
forward andlor otherwise made whole.
2. As a consequence of the violation referred to in part 1 the Carrier
shall immediately correct the Claimant's discipline record and make
Claimant whole for all time lost.
FINDINGS
Upon the whole record and all the evidence, the Board finds that the parties
herein are Carrier and Employee within tare 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 November 2, 2007, tire Carrier advised Claimant an investigation was being
convened:
"...for the purpose of ascertaining the facts and determining your
responsibility, if any, for your alleged confrontational and quarrelsome
conduct In an Incident you were a participant in, on November 1, 2007, at
Page 2 Award No.
Case No. 321
approximately 0700, at Rosenberg, Texas Depot, in violation of
Maintenance-of-Way Operating Rule 1.6, Conduct, in your capacities as
BNSF employees."
In addition, Claimant was also advised he was being withheld from service
pending the outcome of the Investigation.
In reviewing the transcript and the witnesses testimony, it is clear to this Board
that Claimant's past history prompted the cell to the crew's Supervisor to come out to
the location and investigate this matter.
A Foreman and Claimant were involved. The Foreman submitted a written
statement that reads as follows:
"Ongoing problem with Mr. Burns about rooming him with a
roommate and his time on several occasions ...."
The aforequoted
IS
only half of the statement Although the Incident of November 1,
2007, was the sole reason for the Investigation, some of Clalmant's past was offered, but
the interrogating Officer was correct in keeping the subject matter restricted to the
November 1, 2007, incident which was correct procedure.
The two individuals (the Foreman and Claimant) did get Into an argument
precipitated by the Foreman, not the Claimant In fact, the Claimant did the right thing
that after the exchange of words, went out of doors to get away from the discussion.
Claimant simply asked the Foreman for a copy of his payroll (and he had the right
to receive a copy), but the Foreman for some reason (perhaps because of previous
actions of Claimant) was very abrupt in refusing the request of Claimant He could have
handled his response in a different manner, but he chose to be confrontational.
The decision to Impose discipline included a reference to his past history but it
Page 3
should not have gotten that far.
Award No.
Case No. 321
The Carrier failed to present sufficient evidence to establish Cialmant's culpability
for the charges assessed. Claimant is to be paid as set forth in items 1 and
x
of the
Statement of Claim.
AWARD
Claim sustained.
ORDER
This Board, after consideration of the dispute identified above, hereby orders that
an award favorable to the Claimant(a) be made. The Carrier is ordered to make the
award effective on or before 30 days following the date the award is adopted.
~&U,-j -L-41-4rw
art 4.. Hicks, Chairman 8 Neutral Member
Q"
=-
David David D. Tanner, For the Employees
Dated.
· ~~uo~ 027
Samantha Rogera, For Carrier