BROTHERHOOD OF MAINTENANCE)
OF WAY EMPLOYES )
AWARD NO. 12
and ) CASE NO. 12
BNSF RAILWAY COMPANY )
STATEMENT OF CLAIM:
"Claim of the System Committee of the Brotherhood that:
(1) The Carrier violated the Agreement when, following its August 18,
2004 action of removing and withholding Mr. D. Carter from service,
it arbitrarily postponed the September 23, 2004 investigation (System
File S-P-1119-G/11-05-0004 BNR).
(2) As a consequence of the violation referred to in Part (1) above,
Claimant D. Carter shall receive the remedy prescribed by the parties
in Rule 40(G) and (J)."
Public Law Board No. 6538, upon the whole record and all the evidence,
finds that the parties herein are Carrier and Employes within the meaning of the
Railway Labor Act, as amended; that the Board has jurisdiction over the dispute
herein; and that the parties to the dispute were given due notice of the hearing and
did participate therein.
On August 18, 2005, Carrier removed the Claimant from service pending
investigation in connection with an alleged violation of Carrier's Policy on the Use
of Alcohol and Drugs. The Organization requested a
postponement of
the
investigation until September 9, 2004. Carrier granted the request and issued a
letter dated August 25, 2004, notifying the Claimant of this postponement. Another
postponement of the investigation was requested by the Organization, this time until
September 23, 2004. Carrier agreed to a second postponement and sent a letter
dated September 8, 2004 notifying the Claimant.
On September 22, 2004, the day before the scheduled investigation, there was
a communication between the parties that is the subject of the dispute now before
the Board. A letter postponing the investigation until October 1, 2004 was sent to
the Claimant on September 23, 2004. The investigation was held and, as a result,
Claimant was dismissed from Carrier's service on October 11, 2004 for violating the
Policy on Drug and Alcohol Use due to his second positive drug test for a controlled
substance.
P.L.B. No. 6538 Case No. 12
Page 2 Award No. 12
A claim by the Organization dated September 30, 2004 contends that Carrier
violated various rules, but most particularly Rule 40, by unilaterally postponing the
investigation. Rule 40 provides in relevant part as follows:
RULE 40. INVESTIGATIONS AND APPEALS
A. An employe in service sixty (60) days or more will not be
disciplined or dismissed until after a fair and impartial
investigation has been held. Such investigation shall be set
promptly to be held not later than fifteen (15) days from the date
of the occurrence, except that personal conduct cases will be
subject to the fifteen (15) day limit from the date information is
obtained by an officer of the Company (excluding employes of the
Security Department) and except as provided in Section B of this
rule.
B. In the case of an employe who may be held out of service pending
investigation in cases involving serious infraction of rules the
investigation shall be held within ten (10) days after date withheld
from service. He will be notified at the time removed from service
of the reason therefore.
x
I. The date for holding an investigation may be postponed if mutually
agreed to by the Company and the employe or his duly authorized
representative. If there is a change in the location of the
investigation, the employe and his duly authorized representative
will be notified.
J. If investigation is not held or decision rendered within the time
limits herein specified, or as extended by agreed-to-postponement,
the charges against the employe shall be considered as having been
dismissed.
The Organization argues that the foregoing rule clearly requires mutual
agreement by the parties to postpone an investigation. In the absence of such
agreement in the instant case, the Organization submits that the investigation,
which was held on October 1, 2004, was well beyond the contractual time limits.
Since the investigation was not held and the decision was not rendered within the
specified time limits, the charges against the Claimant must be considered as having
been dismissed.
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P.L,.B. No. 6538 Case No. 12
Page 3 Award No. 12
The Organization further insists that this is a rules case, and we are inclined
to agree. Although Rule 40 objections typically arise in the context of discipline
claims, the Organization fled the instant claim before the investigation took place
and before discipline was issued. That being the case, our focus is narrowly framed
and does not extend to an examination of the merits of the Claimant's discharge.
The crux of this matter centers on whether the parties agreed to postpone the
investigation until October 1, 2004. The Organization maintained that it did not
agree to a postponement, while the Carrier insisted that there was concurrence. As
an appellate body, the Board is unable to resolve the factual conflict. The
Organization carried the burden of demonstrating a violation of the Agreement and
it had to prevail on this factual predicate as an essential element of proof. Since we
are faced with an irreconcilable dispute as to what occurred, the Board is forced to
dismiss the claim.
AWARD
Claim dismissed.
ANN S. KENIS, Neutral Member
Jyt~ UW,
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Carrier Member Orga ization Member
William A. Osborn Roy . Robinson
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Dated thi3"dl ay of.,~u. '007.
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