Public Law Board No. 6204
Parties to Dispute
Brotherhood of Maintenance of Way )
Employees )
vs ) Case 17/Award 17
Burlington Northern Santa Fe )
Statement of Claim
1. That the discipline of a five (5) day suspension imposed on Mr. A. E.Murphy
for alleged failure to report for duty on 7:30 A.M. on November 15, 1994 was
arbitrary, capricious, excessive and in violation of the Agreement.
2. As a consequence of the violation the Claimant's record shall be cleared of the
charge leveled against him and he shall be compensated for all wage loss suffered.
Background
The Claimant was advised to attend an investigation in order to determine facts
and place responsibility, if any, in connection with his failure to report for duty at the
depot at Waterbury, Nebraska when he bumped Temporary Foreman D. S. Schuldt off
Temporary Foreman Job 111445161. After an investigation into this matter was held the
Claimant was advised that he was being suspended from service of the Burlington
Northern Railroad for five days for violation of Rule 1.15 of the Maintenance of Way
Operating Rules. This discipline was appealed by the Vice General Chairman with the
Division Superintendent. This appeal was denied. The claim was subsequently appealed
up to and including the highest Carrier officer designated to hear such. Absent settlement
of the claim on property it was docketed before this Board for final adjudication.
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Discussion and Findings
There are a number of procedural issues raised by the Organization in this case
which will be addressed by the Board.
First of all, the Organization argues that the Claimant's due process rights were
violated because he was not advised of the time and locale of the investigation until after
the investigation was held. In this respect the Organization cites Rule 40(c) of the operant
Agreement which states the following in pertinent part.
Rule 40(c)
At least five (5) days advance written notice of investigation shall be given the
employee and the appropriate local organization representative, in order that the
employee may arrange for representation by a duly authorized representative or an
employee of his choice.
According to the Carrier the letter of investigation was sent to the Claimant at his address
of record with carbon copy to the Organization's Local Chairman. A review of the record
by the Board shows that when an investigation was held on this case that neither the
Claimant nor the Organization's representative were present. The Claimant's address on
the notice of investigation was listed at a street address in Bellevue, Nebraska. The record
shows that the letter of investigation went out by certified mail eleven days prior to the
date of the investigation. According to the Carrier the Claimant had not picked up the
letter containing the notice of investigation until after the latter took place but that such
action by the Claimant did "...not put the Carrier at fault...". The Carrier states that it sent
the letter to the Claimant's proper address. The Organization states that the Claimant had
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only become aware of the investigation after "...picking up a Certified letter from the
Carrier informing him of same...".` The Board must conclude that the Claimant could not
have picked up the certified letter if it had not been sent to his proper address. That he
picked it up so late was an act over which the Carrier had no control. The Organization
also argues that the Carrier could have simply given the Claimant a copy of the notice of
investigation while he was at work. This is true. But the Board can find no Agreement
mandate which required the Carrier to have done such. There was no violation of the
Agreement Rule here by actions of the Carrier by the manner in which the Claimant was
advised of the investigation.
Secondly, the Organization alleges that there was a second procedural violation by
the Carrier because the appeal of the discipline by the Vice General Chairman was not
answered within the window period of the time-lines set by the labor Agreement. Request
here is that the claim be forfeited because of this alleged violation. This procedural
objection is based on the following language from the labor Agreement.
Rule 42 (A)
Should any such claim or grievance be disallowed, the Company shall, within
sixty (60) days from the date same is filed, notify whomever filed the claim or
grievance (the employee or his representative) in writing of the reasons from such
disallowance. If no so notified, the claim or grievance shall be allowed as
presented...
A review of the record with respect to this objection shows the following. The
'Employees' Exhibit A-2.
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claim. was filed on stationary showing four different addresses. The most prominent one
was the letterhead of the Organization's System Division which is located in Denver,
Colorado. On the right margin are located the names of the three Vice General Chairman,
and in relatively small type, the addresses of these same three Vice General Chairmen.
Their addresses are located in the states of Illinois, Wyoming and Iowa, respectively.'
The Vice General Chairman who filed the appeal in this case is the one who lives in
Iowa. The Rule cited states that the declination must be sent to "...whoever filed the
claim..." within the requisite window period. The Carrier argues that this was done
because the declination letter was sent to the Vice General Chairman who filed the
appeal. A review of the record shows that this was the case. But the declination letter was
not addressed to this Vice General Chairman's Iowa address. Rather, the declination
letter was sent to the System Division address, as so stated on the stationary's letterhead
in bold letters. Therein lay the Carrier's error, according to the Organization, which led to
the alleged violation of Rule 42(A). The Board hesitates to get involved in procedural
disputes of this nature where the arguments presented have technical merit on both sides.
On the one hand the Carrier should have sent the declination not only to the correct
Organization representative, which it did, but also to that representative's address. On the
other hand, responses to correspondence, of any kind, have normally led reasonable
minds, as a matter of long-established practice, to send responses to the address on the
ZThe General Chairman's name, with the System Division address repeated, is also in the same
format on the right margin of the stationary.
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letterhead of the correspondence in receipt. The position of the Board in this case is that
it is wisest to allow the parties themselves to resolve this type of procedural issue raised
in this instance in order that they might avoid such problems in the future. The instant
objection will be neither denied nor sustained. The objection is dismissed.
On merits, the Rule involved in this case is the following.
Rule 1.15
Employees must report for duty at the designated time and place with the
necessary equipment to perform their duties. They must spend their time on duty
working only for the railroad. Employee must not leave their assignment, exchange
duties, or allow others to fill their assignment without proper authority.
According to testimony at the investigation by the Roadmaster the Claimant placed
a bump notice under the schedule Agreement and then did not show up for work on the
date he was supposed to and thus violated the above cited Rule.
The Organization argues that the Claimant had called in on the day in question and
that he had left a message on voice mail for the Roadmaster. That message stated that the
Claimant was having car trouble, and the Claimant also left a telephone number for the
Roadmaster to call. According to the Organization and the Claimant, the problem lie in
the fact that the Roadmaster never called back to tell the Claimant that there was any
problem with him laying off.
In scrutinizing the record the Board fails to find any documentary evidence that
the Claimant had actually left such a message beyond a letter which the Claimant himself
sent to the Organization stating that he called in and left a message. The Board would be
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more confident in the credibility of such letter if there were corroborating evidence to
back it up. Secondly, there is abundant arbitral precedent in this industry to the effect that
if an employee wishes to take off he or she must get permission to do so. Clearly, in this
case, the Claimant had not done so. In a shift in logic which a Board such as this can but
frown upon the Claimant appears to argue that it was the Roadmaster's duty to have
called him, rather than the other way around, even assuming that the Claimant's version
of the facts were the proper ones. Such argument implying a shift in responsibility related
to work attendance cannot be accepted by the Board. On merits, the claim cannot be
sustained.
Argument about the propriety of discipline imposed here has been examined by
the Board. The Board observes that the Claimant to this case bumped into a foreman's
position. The Agreement classifies such assignments as follows.
Rule 55 (B)
Foreman. An employee assigned to direct the work of men and reporting to
officials of the railroad shall be classified as a foreman.
The Carrier argues that employees bumping to such positions carry a heavier
burden of responsibility and their behavior should match this responsibility. The Board
does not find such argument unreasonable. Secondly, the Carrier argues that this
Claimant had been counseled in the past about absenteeism and that the instant case
represented but yet another instance of his unacceptable pattern of behavior. In view of
the full record in this case the Board in unable to conclude that the Carrier's
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determinations here were arbitrary or capricious.
Award
The claim is denied.
r
Edw . un utr Member
.
as M. hlin Cai71 ember
Roy Robinson, Employee Member
Date: