Brotherhood of Maintenance of Way Employee Division
IBT Rail Conference
1. "The Carrier's decision to impose discipline upon Claimant G. Hollmon in the form of a fifteen (15) day actual suspension beginning June 27 through July 11, 2012, with a thirty (30) day overhead suspension for a period of one (1) year from the date he returned to work, for the alleged violation of General Operating Rules - General Rule A, General Regulations GR-2, GR-3 and CSX Code of Ethics in connection with his alleged falling short of complying with corporate rules, instructions and policies when he willfully neglected his duties by sitting in the truck while other team members were working and allegedly being insubordinate and quarrelsome with his teammates and supervisors and failure to properly perform the responsibilities of his position on June 26, 2012 is on the basis of unproven charges and is entirely improper, unwarranted and in violation of the Agreement (System File D099441212022-132694).
Before addressing the merits of this matter, this Board must first resolve procedural issues raised by the Organization. By letter dated July 24, 2012, the Organization requested all exhibits, documents, and any other items the Carrier planned to introduce at the investigation, including any documents signed by Claimant or other witnesses. Carrier did not provide the requested information and, according to the Organization, thereby violated its obligation to provide Claimant with a fair and impartial hearing.
This obligation does not extend to require that Carrier provide the Organization copies of all statements and exhibits it intends to introduce at the investigation. Rule 25 only requires that Carrier provide Claimant copies of any written statements he made, which was done herein. Rule 25(e) also requires that a copy of Claimant's statement also be provided to his union representative, which Carrier failed to do. However, since Claimant had a copy of his own statement and he was encouraged to contact his union representative before signing
hearing in connection with any matter which may eventually result in the application of discipline "shall be offered the opportunity to contact his accredited union representative before a statement is reduced in writing." The Organization urges that Carrier violated this rule by failing to offer Claimant this opportunity.
After the incident, Roadmaster Skinner asked Claimant to write a statement. Claimant initially refused. Skinner then said that maybe he needed to contact his union representative. When Engineer Track Atlanta Ramsey arrived, Claimant had begun
statement would speak for itself and be in Claimant's interest. Ramsey recommended that Claimant contact his union representative. The uncontradicted testimony of Skinner and Ramsey, as summarized above, establishes that Carrier complied with Rule 25(c) by recommending that Claimant contact his union representative.
While the charge letter referred to GR-3A, the appropriate Rule was GR-3, which was introduced at the hearing. Since the charge gave Claimant notice of the allegations against him with sufficient specificity to permit him to prepare his defense, the typographical error did not affect the fairness of the hearing.
Finally, the Organization urges that Carrier's failure to call Tames Burns violated Claimant's right to a fair and impartial hearing. Burns witnessed at least one (1) of two (2) relevant conversations Claimant had with two (2) supervisors. Both supervisors, Claimant, and another employee testified about these conversations. Carrier's failure to call multiple witnesses to the event does not impair Claimant's right to a fair hearing. Finally, it is noted that the Organization did not seek to call Burns as a witness.
The Carrier and Employee involved herein are Carrier and Employee as defined in the Railway Labor Act, as amended. This Board has jurisdiction over this matter.
On June 26, 2012, Claimant G. P. Hollmon (1D No. 171798), an employee with thirtyhve (35) years of service, was assigned as a Trackman to the 5A47 team, working on the Atlanta Terminal subdivision in the vicinity of Union City Siding. Team SA4? consisted of five (5) employees - foreman, backhoe operator, a truck driver, and two (2) trackrnen. On the day in question, Team 6A01 was assigned to work with Team SA4'7 installing cross ties. The latter team consisted of four (4) employees - a foreman, backhoe operator, vehicle operator, and trackman. During the morning, the teams pulled up spikes, knocked off anchors, putting in new ties, and setting spikes.
PLB NO. 7529
AWARD 14about forty-five (45) minutes. After the lunch break, Claimant was assigned to driving down spikes. A truck carrying equipment necessary to operate hydraulic tools followed the work. After returning from lunch, Claimant was taking a break in the truck. The other tracan, James Burns, and the truck driver, William Steed, who were assigned to Team SA47, were also in the
foreman of both tens then spoke with Claimant. Their testimony, as well as Claimant's and truck driver Steed's, is summarized below.
J. I?. Mitchell, Track Foreman, Team 6AU1, testified that Claimant was taking breaks in excess of the other employees. He went to the truck where Claimant was taking a lunch break, opened its door, and asked him whether he had "any shame." Claimant told Mitchell to get away from him, that "he had thirty-five (3S) years on the book and he didn't have to do nothing." Mitchell said, "OK" and closed the truck door. He did not instruct Claimant to return to work. Right after Mitchell closed the truck door, Claimant's foreman, I?. D. Collier, opened it. He instructed Claimant to go back to work. According to Mitchell, it was five {5} to ten {10} minutes from the time Collier so directed Claimant until he actually returned to work. {Transcript at p. 42, line 37}.
D. D. Collier, Foreman for Team SA47, testified that employees from his team and the other team had complained to him about Claimant not working and that he did not believe that Claimant was "carrying his weight." After the lunch break, Collier instructed Claimant and Burns to go to the north end and start driving spikes. Within an hour after returning from lunch, Claimant and Burns had not driven in many spikes. Mitchell's team was sent to the north end to assist them. When they arrived, Burns was taking a break in the truck. Claimant gave the employees from Mitchell's team the hammer and joined Burns in the truck.
After Mitchell had spoken to Claimant, Collier opened the truck door. The driver was in the truck, Burns was in the front passenger seat, and Claimant was in the back seat. Collier told Claimant and Burns that the employees from Team 6A01 were driving spikes on the north end, and they were there to assist them. Collier said he did not need three {3} men from his team in the truck while the other team was on the ground working, and he needed them to return to work. Burns did so, but Claimant did not at that paint.
Claimant said if those guys, referring to Team 6Aq1, "want to be All Stars, I'm going to let them be All Stars." {Transcript 69, lines 1-2}. An argument then ensued. Claimant stepped out of the truck and said he was going to call someone and began searching for a phone number. Collier kept repeating that he needed Claimant to do his job and Claimant continued bickering. Claimant was rude and told Collier that he was acting like he thought he was God. According to Collier, he did not raise his voice above a normal speaking tone. About ten (10) to twenty {2Q} minutes after being instructed to return to work, Claimant did so.
PLB IBC?. '1.529
AWARD 14
spikes were to be driven. Claimant d Burns took the hose from the truck and hooked it into the hydraulic hammer. They then soak turns driving in spikes. Burns then went to the truck for a break and Claimant continued driving spikes with Rick Hallingshead, the back hoe operator. When the employees from Team 6A01 got there, Claimant went to the truck far a quick break. No mare than three (3) minutes after Claimant entered the truck, Mitchell snatched opened the door and said, "have you no shame". Claimant responded, asking "do you have thirty (30) years?" He then stated that he was on break. Mitchell then jumped out of the truck.
Two (2) minutes later, CaIIier opened the door. According to Claimant, Collier was addressing only him, not Bums. Collier said that he could not have the employees from team 6A01 do all the work and told Claimant to return to work. Claimant responded that he had just
Claimant got out of the truck and told Collier that he had to call somebody because Collier was harassing him. Collier said he had folks he could call as well. According to Claimant, it was at this point that "all the talk came in." (Transcript at p. 76, line 76). Claimant then attempted to call the Ethics Hotline but was unable to reach anyone. Claimant told Collier, "don't bother me, because if 1 call my union representative, they got something to say." (Transcript at p. 79, lines 43-44). Claimant returned to work about five (S) minutes after first being directed to do so by Collier. Transcript at p. 90, lines 14-I'7). According to Claimant, Collier was argumentative.
W. L. Steed was the truck driver and was also responsible to operate the backhae an the day in question. After lunch, one of the employees from Mitchell's team relieved Burns, and he came into the truck with Steed for a break. Claimant continued driving spikes for five (5) to seven ('7) minutes after Bums, got into the truck for a break. Then Claimant also got into the truck.
Between five (5) and ten (10) minutes after Claimant entered the truck, Mitchell opened the passenger rear door, cursed at Claimant, and said Claimant was not doing anything. Claimant responded that he had some thirty (30) years and when a younger guy wants to relieve him, he would let him.
Mitchell then shut the truck door, and within seconds Collier opened it. Before he did so, Burns left the truck and returned to work. Collier told Claimant that he was going to get out of the truck and help drive spikes; that he was not going to sit in the truck like he did the previous day. According to Steed, both Mitchell and Collier were confrontational to Claimant.
l'LB NO. "7529
AWARD 14When Mitchell and Callier approached the truck, Claimant, Burns and driver Steed were in the truck while members of Mitchell's team were working. Burns got out of the truck and returned to work either before or immediately after Callier directed Claimant to return to work. According to Claimant, he did not do so for five (5) minutes. According to Mitchell, Claimant did not return to work for about five (5) to ten (10) minutes after Collier directed him to do so, and according to Callier, it was ten (10) to twenty (20) minutes before he returned to work. Before he returned to work, Gallier repeatedly told Claimant to do so. Claimant maintained that he was being harassed and that he was calling the Ethics Hotline and his union.
Even assuming that it took Claimant five (5) minutes to return to work after first being instructed to do so, as he maintains, this period is still longer than it reasonably should have taken. Claimant was responsible to promptly follow the reasonable instructions of his foreman. His efforts to contact the Ethics Hotline or his union do not excuse his failure to do so. By refusing to follow instructions with reasonable promptness, Claimant was insubordinate and willfully neglected his duty in violation of GR-2.
The Organization relies on several awards holding that where there is a direct conflict of testimony between Claimant and Carrier's primary witnesses, and the result can truly be said to be a "net wash", the Carrier, as the party with the burden of persuasion, must lose. However, as noted in detail above, there is not a direct conflict regarding the facts critical to a determination in the instant matter.
Claimant was assessed a fifteen (15) day actual suspension and a thirty (30) day overhead suspension for a period of one year after Claimant returned to work. Given the finding that Claimant was insubordinate, this penalty is neither harsh, arbitrary, nor excessive.
