PUBLIC LAW BOARD NO. 7529
Case No. 144
PAK ES
TO T E DISPUTE
VS.
Brotherhood of Maintenance of Way Employes Division of the International Brotherhood of Teamsters System File: D26322116
CSX Transportation, Inc. Carrier File: 2017-215549
Referee: Sherwood Malamud
The Board, upon the whole record and on the evidence, finds that the parties herein are Carri1 and Employees within the meaning of the Railway Labor Act, as amended; that this Boarc ls duly constituted by agreement of the parties; that the Board has jurisdiction over the dispu , and that the parties were given due notice of the hearing.
By letter dated December 23, 2016, Claimant, Machine Operator G. B. Mayle requested that tl s disciplinary matter be processed by Public Law Board 7529 (Special Board of
Adju: nent) for expedited handling.
The Carrier hired Claimant G. B. Mayle on September 18, 2000. By letter dated October 19, 21 6, Assistant Division Engineer M.C. McLain directed Claimant to attend an investigatory heari1 ; that eventually was held on November 29, 2016 to address whether Claimant disabled and d naged the smoke detectors in his motel room in the Best Western in Marion, Ohio
betw, n September 26 and October 12, 2016, and was quarrelsome with staff.
At the hearing, the Carrier charged that Claimant violated Rule 104.2 and 104.3, which prov1 ,.
Rule 104.2
CSX employee behavior must be courteous and must not be . . .
d. Quarrelsome
Rule 104.3
The following behaviors are prohibited while on duty, on CSX property, or when occupying facilities provided by CSX:
Award 144
PLB 7529
d. Behavior that endangers life or property.
Claimant had two stays at the Best Western in Marion Ohio between September 26 and Octol: r 12, 2016. On both occasions his vaping set off the motel's smoke alarms. During his first s y, he unplugged the alarm.
The record evidence concerning the second stay reflects the following. He checked into the Bt t Western in Marion Ohio for a stay from October 9 through October 13, 2016. The smok, 1larm in Claimant's room sounded on October 12. By law, the motel must contact the police Consequently, a police report of the incident was generated and is part of the record at the on pre erty hearing. If a guest disables a smoke alarm it trips an alarm at the motel main panel. The fi nt desk personnel alert motel maintenance, who go to the room to investigate.
Claimant admitted to unplugging the alarm system once it went off. He testified he did so to lim the disturbance for other guests. The Board concludes this describes Claimant's conduct durinf me of the two stays. During the other stay, Claimant disconnected the wires in the smoke alarm. C'he Motel maintenance man described the condition of the smoke alarm immediately after ( aimant' s stay.
The Carrier had front desk and maintenance personnel testify at the investigation. The smoh llarm went off in Claimant' s room. When the front desk clerk went to Claimant's room after t : smoke alarm sounded, Claimant told the clerk that he was vaping. Claimant testified to
his be !fthat vaping is not smoking. He told the clerk he would air out the room. After the alarm 1ent off, motel staff told Claimant not to vape. When Claimant was told not to vape, he refrair d from doing so for the balance of the night. 1
By letter dated December 16, 2016, Great Lakes Division Engineer Hess informed Claim 1t that after reviewing the record developed at the November 29, 2016 hearing, it was his decisi, l to assess dismissal as the penalty for his conduct at the motel as described above.
The C rrier Argument
[he Carrier argues that Claimant received a fair hearing. The Organization request for infom tion was sent to the wrong address. The Organization is not entitled to pre-hearing discov y
[he evidence establishes that Claimant was vaping in his room. He signed the notice provid i by the motel that it is a smoke free facility. Claimant admitted he unplugged the smoke
Claimant has a medical condition that the Board makes no reference to in the interest of Claim: tt' s privacy. Claimant paid $250 for damage to the motel. The record does not indicate whethi that is related to the medical condition or to vaping. The medical condition does not form a 1asis for the charge or disciplinary action taken by the Carrier, nor was it considered by the Bo ·d in its consideration of this appeal.
Award 144
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alarm n one occasion. The charging Carrier official alleged that unplugging the smoke alarm endan ered both Claimant and other guests.
The maintenance employee who testified indicated that Claimant had tampered with the smoke :1.larrns during his two stays. The second time, Claimant removed the wires from the smok1 1larm unit.
Claimant admitted he signed the notice provided by the motel concerning their no
smoki g policy, but he did not read it. He just signed it to check-in. A claim of ignorance is not a defen: , PLB 4998 Award No. 26 (Van Wart), [cited but not included in the submission]. The Carri( asserts it met its burden of proof by substantial evidence. Since this is Claimant's second ma3or ffense in one year, dismissal is the appropriate penalty.
Boarc Findings
The Organization stood on the record in argument at the Board.
The Board has carefully reviewed the entire record. We find that Claimant was afforded his co :ractual due process rights under Rule 25. The request for information was misdirected to the WJ ng address.
Claimant signed the no smoking notice provided by the motel at check-in. On the first occasi n, he may well have treated it as a perfunctory matter. However, Claimant stayed at this motel n two occasions over a three week period. By the second stay, he was on notice that the motel ad a no smoking policy, and that vaping would set off the smoke alarm. Nonetheless, he vaped 1 his room and set off the alarm. This evidence does not support Claimant's defense that this is case of a misunderstanding.
The record contains the motel maintenance man's testimony. He found in Claimant's room · e smoke alarm's wires were disconnected. Disassembling a fire alarm places Claimant, the m, el's other guests and staff in danger. It reflects an intent to vape, undisturbed by the alarm. he Carrier views disconnecting a smoke alarm as an act that endangers the life of Claim 1t and other guests and staff of the motel. The Carrier has met its burden to establish a violati n of Rule 104.3.
fhe Carrier did not establish that Claimant acted in a quarrelsome manner with motel staff ii violation of Rule 104.2.
This is Claimant's second major offense, this one on October 13, 2016 and one on Decen )er 1, 2015 in a one year period. The Carrier cites several cases in which Carrier
persor el have been dismissed for unbecoming conduct at a CLC facility, NRAB Third Division Aware \.fo. 32853 (Perkovich); NRAB Third Division Award No. 34221 (Margo Newman); PLB No. 7: 9 Award No. 4 (Miller).
fhe Carrier has overcharged Claimant with a Rule violation that it was not able to prove,
Award 144
PLB 7529
Rule )4.2 d. Quarrelsome. However, the Carrier established that Claimant disconnected a smok alarm on October 12, 2016, a dangerous act. This constitutes Claimant's second major offen: . The Carrier has established that dismissal is an appropriate penalty for the violation establ ,hed by this record.
AWARD
Q
Q
Claim denied.
Sherv 10d Malamud Neutr Mfmber
Date: ( { -, ( 0 (
