PUBLI~. ~AW BOARD NO. 5969
- Carrier File No. CTJ 96-10-12AA
Oraanization File No. T-7641
Award No. 4
Case No. 2
( UNITED TRANSPORTATION UNION
Parties to Disp-u-t_e: ( -and-
( BURLINGTON NORTHERN SANTA FE RAILWAY
lement 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.
INTRODUCTTON
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
reh_ -sentative ("Organization") within the meaning of the Act, as amended.
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Public Law : ad No. 5969
Carrier File No. CTJ 96-10-12AA
' Organization File No. T-7641
FINDINGS 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. B). 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
it
diately, 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 '` lrd No. 5969
Carrier File No. CTJ 96-10-12AA
Organization File No. T-7641
_ Award No. 4 ,
Case No. 2
admitted that he altered the date on the attending physician's return to work record because it
was required for 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
had extraboard rest on June
23, 24, 25
and 26; he worked one shift on June 27 and then was
off June
28
through
30, 1996.
For the period July 1 through July 5, the claimant worked a
total of seven starts before he laid off sick on July 6.
By his own admission the claimant violated Ce neral Code of Operating Rules (GCOR)
1.2.7
and 1.6,14, in that he was dishonest and withheld information when he tendered the
altered medical excuse on July 7,
1996.
The Or.aar·--aticn argues that the claimant's discharge
t 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, 1983,
provides an opportunity to waive an
investigation when mutually agreed to between the parties:
2.
Waiver of Hearing
(a) 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 on 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 4d shall
specify the maximum discipline which may be imposed for
employe's acceptance of responsibility.
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Public Law'- .ard No. 5969
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, "[ilf 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
i 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
gr
ievant (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
'--monstrated.
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Public Law ~oard No. 5969
Carrier File No. CTJ 96-10-12AA
' 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 L.at compliance with the contractual
language requires minimal effort, and the potential benefits, including avoiding the time and
effort spent in conducting investigations, are not insignincant. 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
.. Aications. 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
moPh.
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Public Law _ .ard No. 5969
Carrier File No. CTJ 96-10-12AA
' - , Organization File No. T-7641
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 for 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
Carrie.'s Employee Accountability program, with a probationary period of three years
co.. -.fencing August 14, 1996.
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AThe claim is sustained, in part, in accordance with the Findings, set forth above. The
Carrier is directed to comply with this Award within thir:y (30) days of issuance.
E. T. Koenig, Carrier Robert R. Repstine, Employee Member
onathan I. Klein, Neutral Member
This Award issued the /67w day of
/J ,u.,
l~9~ ._
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