PUBLIC LAW BOARD NO. 7529
Case No. 145
PART S
TO TI DISPUTE
VS.
Brotherhood of Maintenance of Way Employes Division of the International Brotherhood of Teamsters System File: D21003916
CSX Transportation, Inc. Carrier File: 2017-215550
Referee: Sherwood Malamud
The Board, upon the whole record and on the evidence, finds that the parties herein are Carrie and Employees within the meaning of the Railway Labor Act, as amended; that this Board 5 duly constituted by agreement of the parties; that the Board has jurisdiction over the dispu1 , and that the parties were given due notice of the hearing.
By letter faxed December 29, 2016, Claimant, Track Foreman W.R. King requested that this di iplinary matter be processed by Public Law Board 7529 (Special Board of Adjustment) for ex dited handling.
The Carrier hired Claimant W.R. King on October 17, 1978. By letter dated October 27, 2016, " oadmaster B.A. Bias notified Claimant to attend an investigatory hearing to address an incide t that occurred at approximately 1440 hours on October 17, 2016, "... when you failed to report rain N04013 entered your work limits without authority, were dishonest when questioned by me agement about the incident... " The hearing was held on November 30, 2016. At the time
of the .earing Claimant was an Assistant Foreman/Flagman.
The incident that led to Claimant's removal from service occurred on October 17, 2016.
RoadJ aster Bias received a notice from lhe Carrier' s ERAD system that showed that a train passe1 6-feet into Claimant's 707 authority without Claimant's permission. Bias called Claimant about 1e violation of his 707 authority. Claimant told the Roadmaster that the train stopped withii 5-feet of his South end red board and stopped, when in fact it had passed 520-feet past the red be rd and into his authority. Claimant admitted to lying at the request of a train crew
meml r, who believed the incident would lead to the crew's dismissal. Claimant admitted that the tri n had traveled into his authority, when Bias confronted Claimant with photographs from the L' DR.
At the investigatory hearing, Road.master Bias charged that Claimant violated the foll°' ng Operating Rules: 100.1, 104.1, 104.2a., 104.3d, 104.4a
lule 100.1 Employees must know and comply with rules, instructions, and Jrocedures that govern their duties. They must also comply with the instructions Jf supervisors. When there is uncertainty, employees must:
Take the safe course; and
Contact a supervisor for clarification.
Rule 104.1 When on duty, employees must:
Promptly report violations of the rules or special instructions to a supervisor.
Rule 104.2 Employee behavior must be respectful and courteous. Employees must not be any of the following:
Dishonest
Rule 104.3 The following behaviors are prohibited while on duty, on CSX property or when occupying facilities provided by CSX:
d. Carelessness, incompetence, or willful neglect of duties.
Rule 104.4 The following behaviors are prohibited at all times:
a. Concealment of facts under investigation.
By letter dated December 20, 2016 , Division Engineer K.L. Spivey considered the record develi >ed at the investigatory hearing, and he determined that the appropriate level of discipline is dis1 issal.
The C ,rrier Argument
The Carrier argues that there is certain conduct for which an employee does not get a secon chance. Here, Claimant attempted to cover up for the train crew that committed a serious viola1 m by entering Claimant' s 707 track authority. Claimant had a duty to report that the train enten . his authority. Claimant did not report it, when it happened on October 17. He lied to his super .sor, the Roadmaster, when he investigated on October 20. Claimant only told the truth, when ater that day, he was confronted with photos of the train in his authority. Under these circw stances dismissal is appropriate.
The 4 rganization Argument
The Organization emphasizes Claimant's long service, 38 years with the Carrier. The Orga: zation acknowledges that Claimant may have made an error in judgement. In the aften ,on, Claimant indicated that the train stopped short of his authority. In the evening, of
Oct·o :r 20, he told the truth. In light of Claimant' s lengthy service the appropriate penalty is a
lengt / suspension. The Roadmaster indicated in his testimony that he would be receptive to Clair mt's assignment to his supervision.
Boarc f?indings
At the on property hearing on November 30, 2016, the Organization objected to the Octob · 27, 2016 notification letter's failure to set out the Rules allegedly violated by Claimant that w uld form the basis for the investigation. This Board determined in Awards 106
(MacJ mgall) and 114 (Malamud); NRAB Third Division Award No. 35022, BMWE v. BNSF (Keni: that it was not necessary to specify the Rules allegedly violated. Under Rule 25, the Carri<: had to provide sufficient information to alert Claimant of the conduct that is the subject of the 1vestigation. The Carrier did so in the October 27, 2016 notification letter.
The Organization raised no other procedural objection to the hearing process. The Board conch les that Claimant received a fair hearing.
The Carrier met its burden of proof. Claimant admitted that when asked on the afternoon of Oc ber 20, 2016 whether the train entered his 707 authority on October 17, he claimed it had stopp l outside his 707 authority. Then, that evening, when confronted with clear evidence that the tr: n traveled 520 feet past the red board posted by Claimant, he told the truth. There was no dama ;. No one was injured, the Organization argues.
The Board notes the limited track length of Claimant's authority between mile post 803.6 and 8 3.5. A large crew signed the job briefing form and were protected by this 707 authority.
Clain nt made a serious judgment error by not reporting the violation of his authority on
Octol r 17. He violated Rule 104.1. He compounded the error in judgment on October 20, when he fa! ly told supervision that the train stopped within 6-feet of his red board. He violated Rule 104.4
lon,g
The question remains whether dismissal is the appropriate penalty to be imposed on this rm employee. There are two mitigating circumstances to take into account. Claimant' s
lengt of service. He recanted within hours of his answering supervisory questions falsely.
He failed to report the violation, when it occurred on October 17. He told the truth only when t was clear that supervision was well aware of what had occurred. This serves as an aggn ating factor. His length of service cannot overcome the severity of his misjudgment.
Q
Q
AWARD
Neutn mberf
Neutn mberf
Sherw :>d Malamud
Date: l(2 7 t2..D{ r
