BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES DIVISION

HIT RAIL CONFERENCE



UNION PACIFIC RAILROAD COMPANY

[FORMER SOUTHERN PACIFIC TRANSPORTATION COMPANY (WESTERN

LINES)]

Case No. 60

Statement of Claim: It is the claim of the System Committee of the Brotherhood that:








M.R. Moore, we respectfully request that the Claimant's Level 5 be
 expunged from his personal record. We also respectfully request that
 Claimant be immediately reinstated to the service of the Carrier to his
 former position with seniority and all other rights restored unimpaired and
 that the letter of dismissal also be expunged from his personal record. In
 addition, Claimant Moore shall also be compensated for net wage loss,
 both straight time and overtime, and benefit loss suffered by him since
 Claimant's wrongful and unwarranted removal from service and
 subsequent dismissal.
 Background:
 Claimant Michael Moore holds seniority with the Carrier as of April 14, 1998. On May 24, 2005,1 although holding a track laborer position, he had been working as an upgraded ballast operator on Gang 8891, until the new regulator operator who had bid on the position (Greg Wilson) arrived. On May 24, the regular foreman of the gang was on vacation, and truck driver Arturo Castillo had been upgraded to the position of relief foreman. Francisco Pena, load operator for Gang 8891, wrote a letter (subsequently translated from Spanish to English) regarding Claimant's conduct on May 24:

 ' Unless otherwise stated, all dates hereafter are 2005.


    Tuesday morning at approximately 7:35 a.m., as we were doing our daily [exercises] before starting work after the conference call. Mr. Mike Moore made a racial remark, when he was asked to come to work with the gaga RRQI TIP hrramP <rarcr, oo* .,.,.7 -4,-A *.. .7.., -L-a x~-_ b""b "°~ `' "" """"" ·" ·-ij wt'~w~. 1va~a~u LV UV W11aL~LMV [Castillo] told him to do, when Arturo was in charge of the crew that week. Arturo asked Mr. Moore to work with the crew because we were short handed. [Moore] then said "I can't stand to work with these god rlarnma(1 hrfavirono ~~ (Mo wst- .._;.7 l.n . .. *:..,..7 ~x-ti ~t_ A t___f__.__

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    getting in his business .... The next day he again refused to go to work with the crew, Arturo told him again that we needed his help.


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 Arturo Castillo. On June 1, Pefia gave the letter to gang supervisor Felipe Ayala, who in

 turn naCCed it to (^'r R Thnmnenn 7LAanaaar of Trarl( 73rn;nnt Ti _,., , L_ _~7__
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spoke with the manager of the EEO Compliance Group, and it was decided that Claimant should be removed from service pending investigation Thompson spoke with Claimant on July 11. Claimant said that he did not recall making the statements alleged. T-le allmht~.rj hn.VPaar that nn t<vn rtn*ro ;I ., !·._,*:77,. had asked him about helping the gang and Claimant had reminded him he needed to run the regulator. The next day. according to Claimant another gang member was 1Lrrf+;,..* into Claimant's business," and Claimant said, "I'll be glad when these Mexicans get out of my business." The Carrier's EEO Policy states in pertinent part:

 Union Pacific is committed to nrovidina a work environment fmp- from offensive behavior or statements directed at a person's race, gender, or any other protected status. This policy prohibits such offensive behavior and remarks in the presence of other employees, contractors, customers, visitors, and any other persons .... By letter dated June 7, Claimant was instructed to report on June 21 for an investigation regarding his alleged remarks on May 24. and "to develon the farts anti _lane responsibility, if any, in connection with your actions on the above listed dateQ. This is a

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possible violation of the following rules for all employees: · Rule 1.6 - Conduct (#6 -

 Quarrelsome); · Union Pacific's Equal Employment Opportunity/Affirmative Action and

 Related Policy Directives, revised May 1, 2005." After one postponement, the

 investigation was held on June 30.

      At hearing, Castillo testified:


      ... I was the relief foreman for that week because Mr. Perez went to vacation Lori RAr Pares, tnlA ma to ra7Le n,.o,. fl- -- A._ i T t-TA r,r-

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      Michael to come and work with me. He said, but I'm running the

      regulator. So I told him, okay, that's fine. So he went to work ... and

      somebody else told him, he, Mike, we only got 4 people to work on the

      Lanes ax,a n~A ,rnnr hair, Arvi fV,n_ *1.nt>qq-4- 7a.ia-- ,.-+...,._,7 TT_ ,...:a

      b""b, "" -" l" . v.~. a.··v a.aa,.a111., . T v11~11 iT~4 SVL 111aV. llu JULY,

      I'm tired to work with these fucking goddam Mexicans. And he turned

      around and then he said, I'm tired already to get into my fucking

      business .... That's all I heard. I ... didn't got offended about what he

      caid


(Car. Exh. A at 110 -111.) He also stated that after Wilson showed up, Claimant said he

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8891-said that he could teach Wilson to run the regulator because Castillo needed

 Claimant's heln_ Accnrdinu in C'astilln Claimant eaiti "R_t FPtinP f Axralal tnt.7 _,a t_
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work with these guys." Castillo testified, "So okay, if Felipe told you, it'" mean, I

 can't sav nothing" (Id. at 11 7, ) Castillo alan stated °arT liko T coiA T°m n.,t .,#on,lo.t ..
      . .___a. ~__._ _ _-.~ _~_____ ~ ....... .. , I YA .,._ "., . aaa Lava-vaa.vaumu yr

I'm not saying that he disobeyed my order ...." (Id. at 115), and, "I mean, if Felipe told
 him to eo-to keen workine with the surfacing nana 1 nan't say anvthina ahnnt that
 Because Felipe was the one who gave him the orders to work with those guys." (Id. at
 120.)
 The Carrier issued a letter dated August 18 finding Claimant guilty of the charges, mid assessing a nenaltv of UPGRADE Level 5 (dismiceal)ThP (lroani7afnn filwll a claim by letter dated October 7, which was denied. The Organization then appealed the

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denial by letter dated January 5, 2006, which the Carrier denied by letter dated February 10, 2006. The parties discussed the matter in conference on June 6, 2006, but did not resolve it and therefore have presented it to this Board for final decision.

 Carrier's Position:
 The Carrier contends that Claimant was afforded all due process rights and a fair and impartial hearing. The Carrier further argues that substantial evidence, demonstrates that Claimant violated Rule 1.6 as well as the Carrier's EEO Policy by making racial and disparaging remarks to other employees on Gang 8891. Claimant admitted at hearing that he had made derogatory remarks concerning Mexicans. In addition, numerous witnesses testified that Claimant refused to do what Castillo instructed him to do-work with the gang-and then got mad and made racially derogatory comments.
 It is the Carrier's additional position that the discipline assessed in the instant case, Level 5 - dismissal, was within the guidelines of the Carrier's UPGRADE Policy and not arbitrary, capricious or an abuse of discretion. The Carrier has a zero tolerance policy regarding racial or discriminatory remarks. While the Organization argues that the gang members only wanted an apology, the Carrier asserts that the gang members' willingness to forgive Claimant does not mitigate his misconduct. According to the Carrier, the Organization's argument is tantamount to a plea for leniency, and leniency reinstatements are a matter of Carrier discretion.

 Organization's Position:
 The Organization argues that Claimant did not violate Rule 1.6 (6) - Quarrelsome. The Organization points to relief fore mn ~t;11~ teStuiiony that he couldn't override instructions if Ayala had told Claimant to keep working with the

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regulator that week, and that Castillo neither was offended nor considered Claimant to have disobeyed Castillo's order. According to the Organization, Claimant was "antagonized by his fellow gang members that day and the previous days. They knew very well that Mr. Felipe Ayala told [Claimant] to run the regulator, but they thought they would stir things up, which they did, Each day they tried to get under his skin. On the 24th of May they succeeded." (Org. Exh. A-2 at 2.) The Organization contends that Claimant's reaction to this antagonization does not equate to being quarrelsome. Rather, according to the Organization, Claimant was willing to go with the gang but was following Ayala's instructions.
 The Organization further argues that the matter was not properly reported, so that the investigation should not have been held and Claimant's dismissal is invalid. The Organization points out that the EEO Policy requires such matters to be reported "at once," which Pena did not do. The Organization further submits that all but one of the Carrier's witnesses said that they were not offended.
 Testifying on his own behalf at hearing, Claimant asserted that he never refused to work with the gang, but rather only stated that someone had to run the regulator and there was no one else to do it. According to Claimant, even after Wilson arrived, it was necessary to instruct him regarding that particular regulator. Claimant also testified:

      Q. [D]uring the morning exercises, did you make some derogatory

      remarks ... in front of the rest of the gang concerning Mexicans?

      A. Yes, I did. The statement that I made was that, you know, just out of

      frustration, I said ... I wish these Mexicans would stay out of my business


5
 IDLE 66l Awd loo Findings:
 The Organization argues that the matter was not reported promptly enough to permit the Carrier to validly investigate and subject Claimant to discipline. While the EEO Policy requires employees to report violations "at once," no particular number of days is set forth after which the matter becomes stale. In the instant case, the asserted delay was only from May 24 to June 1-one week and one day. The Board finds that the matter was still ripe for investigation under the EEO Policy, and the investigation was properly held.
 The Carrier contends that Claimant was quarrelsome, in violation of Rule 1.6(6). The Board disagrees. Claimant's loose remarks cannot be characterized as quarrelsome. He wasn't arguing or even disagreeing with anyone when he made the remarks. The remarks weren't directed toward any particular person, and no quarrel resulted from Claimant's remarks. The Board therefore finds that Claimant did not violate Rule 1.6(6).
 Claimant admitted at hearing to having made derogatory remarks targeting Mexicans on May 24. The Carrier's EEO Policy specifically prohibits "[a]ny offensive or demeaning epithet or remark referring to race, gender, or other protected status ...." The Policy also sets forth that there will be zero tolerance of violations, and that proven violations "will result in appropriate discipline of the employee, up to and including termination. " (Car. Exh. A at 153.) It therefore cannot be disputed that Claimant violated the EEO Policy and that some level of discipline was warranted.
 However, the Board finds that the penalty assessed--discharge-was excessive in the circumstances of the instant case. Claimant did not target any particular person by his remarks. Rather, it is clear upon the record that Claimant was-albeit inappropriately-

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simply blowing off steam. Claimant has no history of such remarks, and in fact, the Carrier's Gang 8891 witnesses testified that they got along well with Claimant and would not have expected such remarks from him. Only Pefia stated that he had been offended by the remarks, and even he wanted nothing more than an apology. The Board is satisfied that Claimant's remarks on May 24 constituted an isolated slip triggered by what he perceived as interference by other gang members with the orders he had received from Ayala. While Claimant's remarks were certainly wrong, they did not rise to a level warranting dismissal, and the Board finds that the Carrier's assessment of that penalty was unduly harsh. Therefore, the claim will be sustained in part. Claimant will be reinstated, but without any back pay. In addition, if required by the Carrier, Claimant shall attend counseling and/or sensitivity training sessions before returning to work.

 Award:
      The claim is sustained in part. Claimant shall be reinstated, but without any back pay. In addition, should the Carrier require it, Claimant shall attend counseling and or sensitivity training sessions as a prerequisite to his reinstatement.


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