f.
BOARD NQ. 520-
Carrier File No. CTJ 96-1U-12AA
Organization File No. T-'7641
Award No. 4
Case No. 2
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Parties to Dispute
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( BURLINGTON NORTHERN SANTA FE RAILWAY
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Statement of Claim
: Claim is made on behalf of W. A. Halvorson [for] reinstatement to the
service, with seniority and all other rights unimpaired with payment for
all time lost including time attending investigation and all notations
removed from his personal record as a result of being improperly
dismissed from service. Claim is also made for all wage equivalents to
which entitled with all Medical, Surgical, Life and Dental Benefits
restored and for reimbursement of any monetary loss for such coverage
while discharged from the service.
INTRODUCTION
This Board is duly constituted by agreement of the parties dated December 20, 1996
("The PLB Agreement"), and as further provided in Section 3, Second of the Railway Labor
Act ("Act"), 45 U.S.C. Section 153, Second. The Board, after hearing and upon review of
the entire record, finds that the parties involved in this dispute are a Carrier and employee
representative ("Organization")
within the
meaning of the Act, as amended.
Public Law Board No. 5969
Carrier File No. CTJ 96-10-12AA
Organization File No. T-7641
On July 7, 1996, the crew manager of the Denver crew office, Michael J. Maruniak,
inspected a physician's release to return to work for the claimant, Wade A. Halvorson.
(Investigation Ex. 8). The claimant was working an "eleven four" board, or eleven days on,
four days off. Due to the number of days the claimant had laid off work sick in June 1996, a
medical release for claimant's absence was requested by the crew caller. The return to work
certificate provides that the physician saw the claimant on July 6, 1996, and treated the
claimant for an unspecified illness or injury. Of the six possible recommendations on the
certificate, a provision stating that the employee may return to work with no restrictions
immediately, was marked.
However, the attending physician's return to work record reveals an alteration of the
date on which the claimant was seen by the physician. After his review of the medical note,
the crew manager contacted the physician whose name appears at the bottom of the release.
The treating physician wrote to the Carrier that he last saw the claimant on August 15, 1995,
and his office was closed on July 6, 1996. On July 12, 1996, the Carrier issued a notice of
investigation into allegations of dishonesty and failure to give factual information in connection
with the physician's release the claimant provided to the crew office on July 7.
During the investigation, the claimant admitted he had been assigned to the conductor's
extraboard on July 6, 1996. He testified to marking off sick on the morning of July 6, and the
crew caller requested a physician's release for claimant to return to work. On July 7, the
claimant faxed the medical release in question to the
crew caller. The claimant readily
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Public Law Board No. 5969
Carrier File No. CTJ 96-1(?-12AA
Organization File No. T-7641
that he altered the date an the attending physician's return to work retard because it
was required far him to mark up, and he needed the time off work due to fatigue caused by
working every eight to ten hours on the extra board. The work records indicated the claimant
extraboard rest on June 23, 24, 25 and 26; he worked one shift an June 27 and then was
off June 28 through 30, 1996. Far the period July 1 through July 5, the claimant worked a
total of seven starts
he laid off sick an July 6.
By his own admission the claimant violated General Code of Operating Rules (GCOR)
1.2.7 and 1.6,'4, in that he was dishonest and withheld information when he tendered the
altered medical excuse an July 7, 1996. The Organization argues that the claimant's discharge
must be set aside based upon the failure of the Carrier to comply with procedural
requirements, and disparate treatment of the grievant with respect to the penalty assessed when
compared to similarly situated employees.
Section B{2} of Rule 73, effective August 5, 19$3, provides an opportunity to waive an
investigation when mutually agreed to between the parties:
2. Waiver of Hearing
An employe who has been notified to appear for a hearing shall
have the option, prior to the hearing, to discuss with the
appropriate Carrier official, either personally, through or with
the employe's representative, the act or occurrence and the
employe's responsibility, if any.
If disposition of the charges is made an the basis of the
employe's acknowledgment of responsibility, the disposition shall
be reduced to writing and signed by the employee and the official
involved and shall incorporate a waiver of hearing and shall
specify the maximum discipline which may be imposed far
employe's acceptance of responsibility.
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Public Law Board No. 59699
Carrier File No. CTJ 96-10-12AA
Organization File No. T-7641
Disposition of cases under this paragraph (a) shall not establish
precedents in the handling of any other cases.
(b) No minutes or other record will be made of the discussions and,
if the parties are unable to reach an agreed upon disposition on
this basis, no reference shall be made to these discussions by
either of the parties in any subsequent handling of the charges
under the discipline procedure.
Rule 73, Section B(1)(e) further provides, "[ijf an employe who is to receive a notice
of hearing will not be permitted to exercise the option under Section B(2) of this Rule, the
notice of hearing shall so specify." Rule 73 also provides that notice of the hearing shall be
sent to the employee in duplicate. It appears to the Board that the Carrier failed to comport
with the clear language of the agreement on both these points. While the Organization argues
that these procedural violations alone are sufficient to return the claimant to service, the Board
respectfully disagrees.
First, the remedy which the Organization now seeks to impose for the contractual
violations is not to be found within the language of the collective bargaining agreement.
Second, there has been no showing that the claimant's right to due process, including notice of
the charges against him and the right to a fair and impartial hearing were affected by the
violations. No evidence was presented to show the grievant (or the local chairman) failed to
receive the notice of investigation setting forth the focus of the investigation, or the two
notices of postponement which followed. No surprise or undue prejudice has been
demonstrated.
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Public Law Board No. 5969
Carrier File No. CTJ 96-1fl-12AA
Organization File No. T-7641
Further, the Board notes that a waiver of hearing is not a matter of right. Rather, it is
achieved through mutual agreement, including an employe's admission of responsibility, a
waiver of hearing and stipulation of the maximum discipline which may be imposed. Despite
the Board's rejection of the Organization's assertion that the claim should be sustained on the
basis of these violations alone, it cautions the Carrier that compliance with the contractual
language requires minimal effort, and the potential benefits, including avoiding the time and
effort spent in conducting investigations, are not insignificant. Based upon the record before
the Board in this case, the contractual violations do not call for the remedy requested by the
Organization.
More persuasive, however, is the assertion by the Organization that the Carrier has
failed to discipline similarly situated employees with the same severity as the claimant.
Another employee, Switchman Cevin L. Cox, was discharged on the very same day as the
claimant for identical conduct in violation of GCORs 1.2.7 and 1.6. Cox was reinstated four
months later on a leniency basis. The Carrier reasons that the claimant, unlike Cox, had a
prior two-month suspension for a drug and/or alcohol violation, and a censure and thirty-day
suspension for rule violations which support his dismissal.
The Board cannot find any reasonable justification to have treated these two employees
any differently for the commission of the serious offenses of falsification and dishonesty after
taking into account their personal records, together with the scope of their respective
falsifications. Both employees had relatively short seniority established with the Carrier -- the
claimant possessed three years and three months, Cox only served two years and one month.
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Public Law Board No
Carrier File No. CTJ 96-10-12AA
Organization File No. T-7641
Award No. 4
Case No. 2
The infractions noted on the claimant"s personal record are countered by the fact that Cox
falsified doctor excuses not just once as did the claimant; rather, he submitted false medical
documentation on at least five separate occasions over a one-year period.
Consistent and equitable administration of discipline for similar offenses committed by
similarly situated employees is an essential element of just cause. Accordingly, the Board
determines the claimant shall be compensated far time lost from December 10, 1996, to the
date of his reinstatement previously ordered by the Board on April 28, 1997. Consistent with
the penalty assessed against Cox, the claimant shall also be placed in a Level "S" status of the
Carrier's Employee Accountability program, with a probationary period of three years
commencing August 14, 1996.
The claim is sustained, in part, in accordance with the Findings, set forth above. The
Carrier is directed to comply with this Award within thirty (30) days of issuance.
E. T. Koenig, Carrier Mem~
PI
k~t" .
onathan I. Klein, Neutral Member
This Award issued the /C7-14,day of /,9?/
Robert R. Repstine, Employee Member
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