PUBLIC LAW BOARD NO. 6089
BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES )
Case No. 8
and )
Award No. 4
UNION PACIFIC RAILROAD COMPANY )
Martin H. Malin, Chairman & Neutral Member
R. B. Wehrli, Employee Member
D. A. Ring, Carrier Member
Hearing Date: April 6, 1998
STATEMENT OF CLAIM:
(1) The dismissal of Mr. D. A. Wullachleger for alleged
violation of Union Pacific Rule 1.6 was without just
and sufficient cause, on the basis of unproven charges
and in violation of the Agreement (System File D263/1048987D).
(2) As a consequence of the violation referred to in Part
(1) above, the Claimant shall be reinstated to the
carrier's service with seniority and all other rights
unimpaired, his record shall be cleared of the charges
leveled against him, and he shall be compensated for
all wage loss suffered until he is reinstated to
service.
FINDINGS:
Public Law Board No. 6089, upon the whole record and all the
evidence, finds and holds that Employee and Carrier are employee
and carrier within the meaning of the Railway Labor Act, as
amended; and, that the Board has jurisdiction over the dispute
herein; and, that the parties to the dispute were given due
notice of the hearing thereon and did participate therein.
On April 11, 1996, Claimant allegedly voluntarily left the
job prior to completing his shift. Carrier dismissed him and
Claimant requested a hearing. Prior to the scheduled date of the
hearing, at the organization's request, a conference was held and
it was agreed that Claimant would be reinstated to service and
Co09,ci-y
that he would report to carrier's Employee Assistance Program and
comply with all instructions of the EAP. The agreement further
provided that in the event Claimant withdrew from the EAP prior
to completion or failed to follow the instructions of the EAP
counselor, Claimant would revert to the status of a dismissed
employee. Upon Complainant's completion of the EAP and release
from the program, Claimant's record was to be cleared.
On November 26, 1996, Carrier instructed Claimant to report
for an investigation on December 16, 1996. The notice referred
to the prior agreement and charged Claimant with violating Rule
1.6. Carrier also withheld Claimant from service.
The hearing was postponed to and held on December 17, 1996.
On January 4, 1997, Carrier advised Claimant that he had been
found guilty of the charge and dismissed from service.
The Organization contends that Carrier prejudged Claimant,
as evidenced by its withholding him from service. The
Organization maintains that Claimant's foreman testified that
Claimant had performed his duties and carried out all
instructions since his return to duty. The Organization argues
that Claimant posed no threat to safety or to Carrier's operation
and therefore should not have been withheld pending the outcome
of the investigation.
The Organization argues that the hearing officer engaged in
an improper pre-hearing investigation, thereby prejudicing
Claimant's due process rights. The Organization contends that
Claimant's due process rights were prejudiced further because the
notice of charges was not precise, because Carrier failed to call -
the RAP counselors as witnesses, and because Carrier refused to
make Claimant's foreman available as a witness. The Organization
further argues that Claimant's alleged refusal to. comply with the
EAP counselor's instructions occurred on July 16, August 2 and
October 3, but Carrier delayed bringing charges until November 26
and did not schedule the hearing until December 16, in excess of
the Agreement's thirty day time limitation.
On the merits, the Organization argues that Claimant
complied with all instructions. Claimant reported to the EAP but
was not given an assessment because he rightly refused to pay the
$15.00 co-payment. When Carrier clarified that it would pay the
co-payment, Claimant again reported to the EAP. The Organization
relies on Claimant's testimony that he met with the counselor who
agreed with Claimant that Carrier was treating him unfairly and _
advised him to get a lawyer. Thereafter, Claimant heard nothing
further from the counselor and, in the organization's view,
properly assumed that he had complied with all that the EAP
wanted of him and had been released from the program.
Carrier contends that it properly withheld Claimant from
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service in accordance with Rule 48(o). Carrier denies that any
improper pre-hearing investigation occurred. Carrier argues that
the charges were sufficiently precise to allow Claimant to
prepare his defense. Carrier maintains that it could not be
required to have the EAP counselors testify because they were not
Carrier employees and were beyond its authority to require them
to appear. Carrier argues that the charges and hearing were
timely because it, in good faith, was making every effort to get
Claimant to comply with the EAP. Carrier brought the charges
only after Claimant met with the peer support employees who
advised Claimant that he had to comply by November 23. The
hearing was held within thirty days of November 23.
On the merits, Carrier contends that it proved that Claimant
violated the instructions of the EAP to submit to an assessment.
Carrier relies on written reports from the counselor and on
Claimant's refusal to answer questions about efforts by the
Organization and others to get him to comply with the EAP's
instructions.
We consider the procedural arguments first. We find that
Carrier did not violate the Agreement by withholding Claimant
from service. Rule 48 (o) authorizes Carrier to withhold an
employee from service for alleged serious and/or flagrant
violations. Insubordination, in violation of Rule 1.6, is a
serious violation.
We have reviewed the charges and find that they were
sufficiently precise to enable Claimant to prepare a defense. We
also have reviewed the transcript and conclude that the hearing
officer conducted the hearing fairly and impartially. The
hearing officer did meet with a Manager Track Maintenance before
the hearing, but it does not appear that this brief contact
prejudiced him in anyway or resulted in his receiving improper
prejudicial material.
The record does reflect allegations that Claimant refused to
submit to the assessment on July 16, August 2 and October 3.
However, we cannot say that Carrier acted improperly when it
decided to make further efforts to induce Claimant to comply.
Carrier acted reasonably in awaiting the result of peer
counseling before initiating formal disciplinary proceedings.
The hearing was held within thirty days of these final efforts
and Claimant's final refusal to comply.
Finally, we find no due process violation resulting from
Carrier's failure to produce certain witnesses. The foreman
provided no evidence relevant to the charge. The Organization
maintained that his testimony was relevant to whether Carrier
acted properly in withholding Claimant from service, but we
already have held that the seriousness of the charge justified
Carrier's actions. Furthermore, because the EAP counselors were
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not Carrier employees, Carrier was not obliged to produce them as
witnesses. However, Carrier assumed the risk that by relying on
their written statements, it might not have sufficient evidence
to prove the charge.
Accordingly, we turn to the merits of the charge. The
parties present conflicting views of what occurred. The
Organization, relying on Claimant's testimony, contends that
Claimant complied with all instructions, that he met with
Counselor Mayo, that the counselor did not know why he was there
and agreed with him that Carrier-was treating him unfairly, and
that Claimant never heard from the counselor again and properly
assumed that he was released from the EAP. Carrier, relying on
Counselor souther's written statement and testimony from its
managers, maintains that when Claimant met with Counselor Mayo,
she spent an hour calming him down, he did not submit to the
assessment and he' refused all subsequent efforts to persuade him
to return to the EAP for the assessment.
Counselor Souther's written statement and the Claimant's
testimony are in direct conflict. This case would be troubling
if the only evidence against Claimant was Counselor Souther's
statement, although we note that if Claimant's story is believed,
Counselor Mayo acted in a highly unprofessional manner. However,
there is considerably more evidence that contradicts Claimant's
testimony. Carrier's witnesses testified that the Vice General
Chairman also tried to persuade Claimant to submit to the EAP
assessment and that he gave the manager track maintenance a
letter to give to Claimant. When asked about his dealings with
the Vice General Chairman, Claimant refused to answer the
questions. Furthermore, Carrier's witnesses testified that peer
support employees met with Claimant and conveyed to him Carrier's
final ultimatum that he submit to the EAP assessment by November
23. Claimant did not deny the meeting with the peer support
employees. Claimant's evasiveness and the negative inferences to
be drawn therefrom, coupled with Counselor Souther's written
statement and the low probability that a counselor would act as
unprofessionally as Claimant maintained Counselor Mayo acted,
provide substantial evidence in support of the charge that
Claimant was insubordinate in violation of Rule 1.6
Insubordination is a very serious offense. Under Carrier's
UPGRADE policy, an insubordinate employee is subject to
dismissal. Moreover, Claimant already had been dismissed and
reinstated based on his agreement to submit to the EAP and comply
with the EAP counselor's instructions. Under these
circumstances, we cannot say that dismissal was arbitrary,
capricious or excessive.
4
AWARD
Claim denied.
Martin H. Malin, Chairman
AO
46'(
x za-L-
D.A. Ring, R.B- Wei (Dissent Attached)
Carrier Me fe Employee Member
Dated at 'cago, Illinois, September 23, 1998.
5
ORGANIZATION MEMBER'S DISSENT
TO
AWARD NO. 4 OF PUBLIC LAW BOARD 6089
(Referee M. H. Malin)
It has been said more than once that one school of thought among railroad industry
arbitration practitioners is that dissents are not worth the paper they are printed on because
they rarely consist of anything but a regurgitation of the arguments which were considered
by the Board and rejected. Without endorsing this school of thought in general, it is equally
recognized that a dissent is required when the award is not based on the widely accepted
precedent. Such is the case here.
Like it or not, the Carrier and this Organization agreed to time limit restrictions in
their discipline rule and consequences for the party that fails to comply with these time
limits. The National Railroad Adjustment Board has normally followed the well established
principle of law and precedence that a statute of limitations begins when the cause of
action arises. In this case the Board's majority recognized that the record reflected
allegations "that Claimant refused to submit to the assessment on July 16, August 2
and
October 3." That same record indicates that by scheduling an investigation for December
16, 1996, a hearing was
NQ-T
scheduled and held
"within thirty
(30) calendar days from
date
of
the occurrence to be investigated or from the date the company has
knowledge of
the occurrence to be investigated" (direct quote of Rule 48 - DISCIPLINE AND
GRIEVANCES).
When time limitations, for the performance of an act, are embodied in an
agreement, with precision, the parties are contractually obligated to comply with them.
Whether the limitations are found in practice to be harsh, not equitable, or unreasonable,
should be no concern of this Board. Instead it is allowed no other discretion but to apply
the rule as written.
Here, the majority ignored these well established and appropriate principles. In
effect, the majority's action constitutes a different interpretation of the time limit provisions
as contemplated and/or represents a rewriting of the provisions which it was never
empowered to do.
To justify ignoring the alleged incidents of July 16, August 2 and October 3, the
majority asserts "[t)he
hearing was
held within thirty days
of
these final efforts and
claimant's final refusal to comply." However, in a quick review of Rule 48, one can easily
determine that the time limit provision does NOT indicate or even suggest that the thirtyday time limit commences to toll immediately following the fourth occurrence of the same
alleged offense to be investigated. In effect, this Board and its majority decision have
established a precedent based on Carrier arguments that will send an inappropriate
message to the employees. That message, of course, is that an employee may ignore an
instruction given him on three (3) occasions and he will only be subjected to the disciplinary
process if he fails to comply with that instruction on the fourth or "final" occasion. This
is of significant concern when it involves instructions dealing with safety. Another
conclusion that can be derived form this award is that the employees must comply with the
terms and conditions of their employment but Carrier officials need not be concerned with
such compliance.
In either case, the conclusion of the Board's majority on this point is seriously
flawed, contradicts the well established principles connected thereto and is, therefore,
devoid of any precedential value.
Another obvious flaw in this award is the fact that it allowed, if not condoned, the
Carrier's decision to dismiss the Claimant without providing adequate evidence in support -
of its charges. The Carrier is obligated to produce and submit direct, positive, substantial,
material and relevant evidence to sustain its charges and actions. The Carrier failed
miserably in this regard, yet, the Board's majority inappropriately supports its sustaining of
the charges and issuance of discipline.
The record reflects that the only individuals who witnessed what took place between
the Claimant and Counselor Mayo, was the Claimant and Counselor Mayo. The only
evidence obtained from Counselor Mayo was a written statement (Exhibit G-2) which
merely indicated she missed the Claimant at a scheduled intake appointment on May 23,
1996. Pirst, that date, May 23, 1996, had absolutely nothing to do with the charges
preferred against the Claimant as it was not "July 16, August 2 and October 3" or the
"Claimant's final refusel to comply." (Quotes from the award) Secondly, the record reflects
that the reason why counselor Mayo missed the appointment with the Claimant was not
because the Claimant did not report for the session as scheduled, but, instead, it stemmed
from a mistake the Carrier made. That is, the Carrier failed to take care of the $15.00 copay associated with Claimant's insurance coverage for an Employee Assistance
assessment as it origanally agreed to do. This issue was cleared up during the
investigation by Supervisor Pensick as shown on page 50 of the hearing transcript, and I
quote:
"So, at this time, I called
Mr.
Goodman
and fold
him that, basically,
Mr.
Wullschleger was right. We agreed to pay the money for his assessment
That we would go
ahead and pay
the assessment money."
In light of this fact, there was absolutely no evidence or testimony provided by
Counselor Mayo presented by the Carrier to support its version of what purportedly took
place between Counselor Mayo and Claimant Wullschleger. The only evidence presented
from the two was that provided in direct testimony from Claimant Wullschleger. Absent any
evidence from Counselor Mayo which would refute the Claimant's testimony, the Carrier
and the Board are without basis to ignore or reject that testimony. Carrier witnesses and
managers, Messrs. Kohake and Pensick, recognized this fact during the investigation as
shown by the following testimony:
Manager Kohake
(Page 36-37)
Q: Did you ever--were you present with Mr. Wullschlegerwhen he met
with this counselor?
A: No.
Q: Have you discussed it with the counselor?
A: No.
Q: So, you have no first hand knowledge whether or not he met or did
not meet with the counselor, other than a written statement that's
been provided?
A: That is correct.
Manager Pensick
(Page 59)
Q: Did he comply--did Mr. Wullschieger comply with the instruction and
programs of the Employee Assistance Counselor, Ms. Patty Mayo
immediately following your meeting?
A: Well, I don't have any idea on that myself, as far as -- it's basically
out of my hands when he goes to employee Assistance.
The.Carrier provided no other witnesses to testify at the investigation concerning the
charges. The only "evidence" presented by the Carrier in support of its version was a
written statement from an associate counselor or "Laison", Ms. Souther, which at the very
most could only be categorized as heresay or second hand information. Initially, while this
Board member does not agree with the majority that the Carrier was unable or not obliged
to produce either counselor as a witness, it makes absolutely no sense that the Carrier
could obtain a written statement from Ms. Souther but was unable or chose not to produce
one from Counselor Mayo. In any event, the written statement from Ms. Souther was
completely unsubstantiated by testimony of Ms. Souther, or testimony and/or a written
statement
of
Counselor Mayo. As such, the hearsay testimony had no probative value.
In light
of
the fact that this award ignores the well established principles concerning
Carrier obligations toward basic procedural and burden
of
proof requirements, this Board
member believes this award is palpably erroneous, of no precedential value and 1,
therefore, dissent.
CARRIER MEMBER RESPONSE
TO
ORGANIZATION MEMBER'S DISSENT
TO
AWARD NO. 4 OF PUBLIC LAW BOARD 6089
(Referee Martin H. Malin)
First and foremost, the Referee in this case did not err in his decision to deny the
claim. Contrary to the assertion of the Organization Member the Award is based on ample
precedent and therefore is not palpably erroneous. The Carrier considers the Award to
have precedential value and will cite the findings in similar disputes.
Second, this is not a "Dissent" out rather a re-hash of the "ex parte" Submission of
the Organization Member. Other than conjecture and opinion, at no point is there any
substantiation of any of his personal theories.
What is obvious is that the Organization Member only wants to take excerpts of the
entire record, put those excerpts under microscopic evaluation, and criticize from there.
It has been said the best critic is the best arm chair quarterback. Disturbingly, the
Organization Member fails to mention the involvement of the Brotherhood in those other
events he contends should have been the triggering date for any discipline.
To read the Dissent of the Organization Member, one would be left with the
impression that he is the only person who understands the time limit provisions contained
in the Discipline Rule of the Agreement Nothing is further from the truth. Rather, the
Carrier Member points out the Board did not err in its decision and has correctly applied
the time limit provisions of the Agreement. Here, the Organization Member continues to
dismiss the entire record and only concentrate on those portions of the transcript he
individually elects to recognize. The incident, for which the Carrier elected to base
discipline, was the date the employee refused to adhere to explicit instructions.
The action or inaction of the Claimant which triggered the discipline was fully and
adequately covered in the Notice of Investigation, the Hearing Transcript, the Notice of
Discipline and the on-property handling. Both parties adequately and fully explained their
respective positions to the Referee in both an "ex parte" submission and oral argument
before the Referee. It is therefore time to move on.
In sensationalizing his Dissent, the Organization Member engages in sophistry in
its barest form by leaving the impression there will be all kinds of egregious events
occurring. To wit, the Organization Member stated, "That message, of course, is that an
employee may ignore an instruction given him on three (3) occasions and he will only be
subjected to the disciplinary process if he fails to comply with that instruction on the fourth
or'nnal occasion. This is of significant concern when it involves instructions dealing with
safety. Another conclusion that can be derived form this award is that the employees must
comply with the terms and condiTions of their employment but Carrier officials need not be
concerned with such compliance." Not only is this statement one of opinion, but not
factual. Again, the Organization Member elects to decline to discuss the entire record.
The Carrier Member reminds the Organization Member that he is the only one suggesting
or condoning employees to ignore instructions, especailly when he reduces such an
opinion to written form.
In any event, while the Organization Member went on to reargue the remainder of
his submission, to avoid writing a rebuttal submission to the Dissent the Carrier Member
affirms the Carrier's position that the Award is correct and has precedential value and will
be applied.
Respectfully submi ad,
6 ~ -
D. A. Ring
Carrier Member