BROTIJERHOOD «F MAINTENANCE OF WAY
 EMPLOYES DIVISION - IIrr RAIL, CONFERENCL
Is

 RNSF RAILWAY COMPANY




STATEMENT OIL CLAIM :











FINDINGS:
Public Law Hoard No. 7048, upon tile; whole record and alt the evidence. finds and holds that Fmployee 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 have participated in accordance to the Agreement that established the; Board.

 ()n October 4. ?O11. Claimant was directed to attend a formal Investigation on October 10. 2011, concerning in pertinent part the tbtlowing charge:


                                Page 2


    white working as machine operator on 'f"CYOl.


    The investigation will determine possible violation of M()W<)R 1.6 Conduct."


t)n November 4, 201 1, Claimant was notified that fie had been found guilty as charged Etnd %vas dismissed from service.


It is the Organ iration"s position that Rule 13(a) the Discipline Rule requires that decisions can Investigations will he rendered as promptly as possible and the decision in this instance was not made until 32 clays sifter the Claimant was removed from service, therelbre, it reasoned that teas not prompt. It further argued that the Claimant and Organization had neat received a copy of' the transcript which denied the Claimant and Organization the opportunity to review the transcript before making its appeal. Lastly, it suggested that because the transcript had not been promptly sent out raises the question as to whether or not the Disciplinary Officer reviewed the transcript beti)re making his decision. Based upon those alleged procedural crrors the organization asserted that the claim should be sustained without even reviewing the merits. I lowever, if the merits are examined it argued that the transcript shows that the Claimant never groped ztny co-workers in an inappropriate manner, but instead participated in some harmless horseplay that was not a dismissiblc offense. It concluded by requesting that the. discipline be rescinded and the claim sustained its presented.


It is the position of the Carrier that there. were no procedural defects. It ari'ued that the. Clairrlant was not ,ub ject to Rule 13(a) anti Appendix No. I l because Claimant was a member of' a Regional System Clang at the time of the alleged offense and was governed by Rule 40 of the former Burlington Northern Agreement and under that Agreement its decision was timely. It further stated that it had mailed the transcript to the Claimant and the Organization. but because the Organization asserted it had not received its copy. It was sending another copy <>f~ the transcript with the right of the Organization to present any new evidence or argument within 6) days with no abjec=tion by the Carrier. Turning to the merits it argued the rec=ord verifies that Claimant grabbed co-workers inappropriately and made obscene comments towards them and because of that dismissal was proper. 1t closed by asking that the discipline not he disturbed anti the claim remain denied.


The Board will first address the Organization's argument as to whether or not the klismissal decision was made in a timely fashion and in accordance with the Agreement. The parties have stated that the Claimant was governed by two different Agreements regarding the time limits fOr the issuance of the disciplinary decision. The C?rgamsation argued that under Rule 13(a) the Discipline Rule the decision was not prompt. The majority of'Agreentents in the railroad industry have specific timelines as to when decisions must he rendered with ninny Stating that decision must be made within 30 days. Rule I 3(a) states in pertinent fart:

                                l'.L.B. Rio. 7048

                                ,sward No. 96, Case No. 96

                                Page 3


    "...Decisions on investigations will be rendered as promptly as possible."


F he Board is not persuaded in this instance that the C7arrier's decision was untimcly or, that it violated Rule 13ta).


The Carrier argued that the Claimant was governed by Rule 400)) of the IAN Agreement that stated in pertinent part:


    =A decision shall be rendered within thirty (3(l) days following the investigation and written notice thereof will he given the employee, with copy to local organization representative ...." (Unclcrlinini~ Bourd'v cmtihrrxis)


Fhe decision vas rendered in less than :>0 days after the Investigation vas held and the C'arricr did not violate Rule 40(f)). .


It is clear that under either Agrecrncnt the decision was rendered in a timely fashion. Additionally, the record indicates the C'lairnant was a l6rmer A l St· employee. but because he Gras working can a region/swstem gang at the tirne the discipline was issued lie was covered by the t<>rmer l3N Agreement, thus Discipline Rule 40 was applicable.


l'hc Board hits thoroughly reviewed the transcript anti record «fevidcnce and determined that the Investigation anti appeal process met the guidelines for fairness of both of the aforementioned Agreements and the C1ainlant was not denied his "clue process" Agreement ri uhts.


`l-he Carrier alleged that the Claimant groped his co-workers in an inappropriate manner ()it multiple occasions. (fin pages 10 and l I of the transcript one of Claimant's co-workers, M. I lunsaker. Machine Operator was questioned about the alleged incident:, as follows:


      ".James Sadler: Okay. You said, "Grabbing you.°" Of course there's several

      ways and place grabbing; you. Can yon be more specific on what you mean`.'


      Mark flnnsaker: 1 mean, yon want me to be blunt`.'


      .James Sadler: Yes.


      Mark 1-lnnsaker: Well, he'd reach over and grabbed your ---- and ----and squeeze them.


      .James Sadler: .end was this a one-time occurrence:'

                                1'.l ..13. No. 7048

                                Award No. 96, Case iNo. 96

                                Page -I


    :Mark flunsaker: No, sir, several occasions, at least five.


llunsaker %vent on to testify that the various incidents had happened over a period of ;even to eight weeks. On pages 34 and 35 of the transcript two additional statennents regarding the allegations were entered without ohjeetion. The first statement by T. Delcour dated October 4. 2011. stated the f61lowing:

    "()n three different occasion:, over a period (if approximately 2 month,, a co-worker by the name of Adam C'orneigho has gabbed my personal private body parts. It was the mid section of the front of my body. ()n all three occasions I told Adam to stop. Also during this two month period, while riding the van back to the motel after work, Adam stated that he 'liked gay butt sex'. Ile also stated 'lie likes it when they cum in his mouth'. fie made these comments several tithes while riding the van to and horn work."


    The second statement made; by .l. Garter stated the; following:


      "Separate occasion, Adam C'oruejo grabbed my penis and testicles. He tried and failed on one other occasion because I turned and blocked him. I told him to stop, but the failed attempt occurred after I told him to stop. Also, he often said he 'loved gay butt sex'. The first time I heard hint say that, we were in the van and I was sitting in front of him. I was shaking; my head in disbelief and, without looking or speaking to him. fie said, 'You are from Kansas, you know you like it,' and put his finger in my ear and wiggled it around. All of this occurred betN,,cen August 22nd, 2011 to Sept. 23rd, 2011 during work, while on the 1'81 I."


The Claimant testified he never groped anyone and did not make any lewd remarks instead he stated he engaged in friendly horseplay. ('laimant was questioned on page 38 of the. transcript about the alleged horseplay as follows:

      ".Tames Sadler: And Mr. 12oskilly said that you admitted to engaging in horseplay while at work, on Company time?


      Adam W. Cornejo: Yes, I did.


      .lames Sadler: And what would the nature of that horseplay be?


      Adam W. Cornejo: A gesture made between two friends at work, meant to do nothing more than scare the other individual or get a rise out of them, done in, like I said, just horseplay.

                                1'.L.R. No. ?048

                                Award No. 96, Case No. 96

                                Page 5


    .lames Sadler: And what type of gesture''


    Adam W. Cornejo: r1 hand motion made towards the groin area, again done just to make the other individual jump or just to scare them.


    .lames Sadler- So this hand motion towards the groin of other rrnployees, is this something that you do fc-quently?


    Adam W. Cornejo: Define frequently.


    .lames Sadler: I'll define it as is this something you do every day:'


    Adam W. Cornejo: No.


    .lames Sadler: Is this something you do every week:'


      Adam W. Cornejo: Probably.


    .lames Sadler: Is this something you do multiple times a week'


      Adam W. Cornejo: On occasion, maybe.


    .James Sadler: So this was first brought to the attention on ,`September 30th. Was this horseplay, making a handward motion towards an employee's crotch to Mr. I>funsaker`a


      Adam W. Cornejo: Yes. (thtelerlinzr~t~ Bourd"s emphasis)


Fhe Claimant's tolorilation of the multiple incident:; -ts simple horseplay involving several co-workers was not persuasive. The statements from three employees who either testified or of`f`ered written statements were specific that it was not horseplay and each believed they had been harassed after repeatedly asking the Claimant to stop and one felt threatened. Substantial evidence was adduced at the Investigation that the Claimant was guilty as charged as he violated MC)W'C~R 1.6 Conduct.

                                P.L.B. No. 7f>48

                                .ward No. 96, Case No. 96

                                Page fr


The only issue: remaining is whether the discipline vas appropriate. :fit the time of the incident Claimant hard a little over four nears cafe service. Claimant's infraction was of a serious nature as he suhjectcd his co-workers to Intimidating and offensive hchavior wherein he created zt hostile work environment that was a distttissihle first time olfense. The dismissal assessed aoainst the Claimant will not he set aside as it was in accordance with the Carrier's l'olicv fir l~mployee Performance Accountability tf'Ef'A) and it teas not excessive. arbitrary or capricious. I'lie claim will remain denied.


                AWARD


    Claim denied.


        William R. Miller, Chairman & Neutral Member


Samantha Roger;. Carrier Mac: her David (). Tanner. Fmplo, cc Member

 .Award Date: