PUBLIC LAW BOARD NO. 6102
PARTIES TO DISPUTE: Brotherhood of Maintenance of Way Employes
and
Burlington Northern Santa Fe Railway
(Former St Louis - San Francisco Railway Company)
STATEMENT OF CLAIM:
"Claim of the System Committee of the Brotherhood that:
1. The Carrier violated the current Agreement when it unjustly suspended Mr.
N. J. Thomason for five days for allegedly failing to comply with instructions
and for allegedly being absent from work without proper authority.
2. As a consequence of the Carrier's violation referred to above, the discipline
shall be removed from the Claimant's personal record and he shall be compensated for all wages lost." [Carrier's File MWC960624AA. Organization's
File B-2504-1].
FINDINGS AND OPINION: ,
Upon the whole record and all the evidence, the Board finds that the Carrier and
Employees ("Parties") herein are respectively carrier and employees within the meaning of
the Railway Labor Act, as amended, and that this Board is duly constituted by agreement and
has jurisdiction over the dispute herein.
The Claimant, a Bridge & Building Foreman, was suspended for five (5) days for
failure to report and comply with instructions from his Supervisor, and for being absent from .
duty without proper authority.
The record shows that the Claimant and his crew were working in the vicinity of
Hayti, Missouri. When they went on duty at 7:00 a.m. on February 16, 1996, the weather
conditions were icy:- The crew was scheduled to work on a bridge, but the adverse weather
and lack of dry material precluded carrying out their planned work. The Claimant conferred
by telephone with his Structures Supervisor in Memphis, Tennessee, at 7:30 a.m., who
instructed the Claimant to take his crew and their assigned truck to Cape Girardeau, Missouri, a distance of about 80 miles, obtain whatever material was needed, and work in the Cape
Girardeau area for the balance of the day.
The Claimant did not explicitly refuse the orders, although he did point out that road
conditions were icy north of New Madrid, Missouri. After concluding the telephone
conference with the Structures Supervisor, the Claimant and his crew members decided that
road conditions were too hazardous to risk taking their assigned truck to Cape Girardeau.
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[RECEIVED
Public Law Board No. 6102 Award No. 8
Case No. 8
The record is not clear regarding what happened after that. According to the
Structures Supervisor, the Claimant sent two of his crew members in a personally owned
vehicle to Cape Girardeau, and the Claimant and the rest of his crew marked off for the day
after working 1.5 hours. But the Claimant's testimony indicates the entire crew may have
left Hayti at 8:30 a.m., traveled to Cape Girardeau in personal vehicles, loaded dry material
and, finding no other work to do, quit for the day at 10:30 a; m. Since they had left their
truck at 8:30, they decided to turn in only 1.5 hours, fearing that reporting longer hours may
have laid them open to a charge of payroll falsification, according to the Claimant's account.
The Claimant admittedly made no attempt to notify the Structures Supervisor that the
crew was marking off because of the inclement weather.
The Claimant's testimony that the roads were iced over when he conferred with the
Structures Supervisor at 7:30 a.m. was confirmed by his crew's truck driver, who described
an accident he and another employee observed while enroute to work that morning, caused by
a truck skidding on an icy spot on Interstate 55. This witness told the Claimant that he felt it
would be unsafe to drive their truck to Cape Girardeau that morning.
The Structures Supervisor stated that he left Memphis at 8:00 Lm., passed Hayti at
10:00 a.m., and arrived Cape Girardeau approximately 12:30 p.m., driving Interstate 55, and
found the highway clear and dry and the sun was shining. He did not consider the driving
conditions to be hazardous.
These accounts may not be as inconsistent as they appear. If the sun came out and the
weather warmed, the road conditions may have improved markedly by the time the Structures
Supervisor passed Hayti. Icing is often quite localized. Memphis is about 90 miles south of
Hayti.
The Board finds there was compliance with the applicable provisions of Rule 91, the
Discipline Rule, of the Agreement between the Parties, and substantial evidence was adduced
at the investigation to support the charge that Claimant failed to report and comply with
instructions from his Supervisor, and was absent from duty without proper authority.
Under the weather conditions which prevailed in Hayti at 7:30 a.m., the decision not
to continue working may have been the safest course of action. The Carrier's rules place
safety as the paramount consideration. "Safety is the most important element in performing
job duties." (Safety Rule 1.1). "In case of doubt or uncertainty, take the safe course."
(Safety Rule 1.1.1)
The Board finds, however, that the leading issue in this case is the Claimant's failure
to apprise his Supervisor that the crew was quitting early. The Supervisor carried a pager
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Public Law Board No. 6102 Award No. 8
Case No. 8
and his car was equipped with a cellular telephone. His office telephone had a recording
device. He should have been notified, and this was acknowledged by the Claimant.
Had there been an emergency which required the services of the Claimant and his
crew, no one in a managerial capacity could have known that they were not on duty at Cape
Girardeau, as they had been directed.
If the Claimant had notified his Supervisor of the crew's intention to quit early, they
might have been directed to other work, or counseled to wait and see if the weather conditions improved as the day wore on, which indeed seems to have occurred. The Structures
Supervisor tentatively mentioned certain door framing work that might have been performed
at Blytheville, Arkansas, but the Board believes there was no clear directive to the Claimant
with respect to that particular task.
The Board finds that the Claimant failed to comply with Maintenance of Way
Operating Rules 1.13 and 1.15, which read as follows:
"Employees will report to and comply with instructions from sppervisors who
have the proper jurisdiction." [Rule 1.131
"Employees must not leave their assignment, exchange duties, or allow others
to fill their assignments without proper authority." [Rule 1.151
The icy, snowy weather condition was a mitigating circumstance to a limited degree,
in that it provided the impetus for the early quit. The Claimant was the Foreman in charge,
but it seems he may have been unduly influenced by the apprehension of his crew and driver
concerning the weather. The Board notes that he had been Foreman only two months.
Perhaps with more experience he would have exercised better judgment under the circumstances of that day.
There was no falsification of time; indeed, it appears the crew actually worked more
hours than were reported on the day in question, and claimed less than the minimum hours
provided for in the Parties' Agreement when weather conditions prevent work from being
performed.
During the appeal process on the property, an offer was made by the Carrier to reduce
the five-day suspension to a one-day suspension. Clearly, neither this Board nor the Carrier
is bound by a settlement proposal which is offered and refused. The Board, however,
believes that a five-day suspension without pay is excessive, in light of the circumstances and
the Claimant's past employment record.
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Public Law Board No. 6102 Award No. 8
Case No. 8
The Claimant's employment record has ambiguous entries with respect to this
discipline case. He had some 21h years' service on February 16, 1996. There are no
disciplinary entries until the occurrence which is the subject of this Award. The work record
states he was given a letter of censure for violation of Rules 1.13 and 1.15, and then given a
five-day suspension for the same occurrence, characterized as a "second offense." Furthermore, the dates recorded are inconsistent with the investigation transcript, the payroll record,
and relevant correspondence. The Board believes this is the Claimant's first offense, and that
the discipline should be reduced to a one-day suspension without pay. Payment for the
excess number of lost work days encompassed by this reduction shall be made within the time
limit prescribed in the Award below. The Claimani's employment record should be amended
to correct the erroneous entries referred to above.
AWARD
Claim sustained in accordance with the opinion. The Claimant shall be compensated
in accordance with the opinion above within sixty (60) days from date of this Award.
Robert J. Irvin, Referee
Date
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