PUBUC lAWBOARD NO. 7544
Brotherhood of Maintenance of Way )
Employee5 Division - IBT )
Rall Conference )
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and )
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SOOUne R.._H,oad Company (CP) )
CaseNa. 69
BacJc8roung
On January 23, 2017 the Carrier Issued to Claimant J, Schmitt a notice of formal investi lon and
hearing. Thenotk:estated, In paftt thefollowlns:
"The purposeof thlSl tton/heartnsIs tod rmlne the facts.and ctn;umstances and to place your responslblltty, if any; In conned:lon wlth your alleged failure where YO\! were discourteous and lnsubordlnate to a Company officer on January 100', 2017. This lndleatesa posslbfevlolatlon offbutls notlJmltedto, the followinaruler.
On February 1, 2017; theformal lnvestlgatton/hearlnsconvened wherein aalmant and hls representative were afforded theopportunity to present testimony andother evldente aswellas
examine the carrier's witnesund two(2) exhibits.
On February 27, 2017, the Clrector Trade and Structures -Glenwood notified Clalmant that the recorctof the proceeding establfshed Oafmant's violation of GCOR 1.6..Conduct Based onthe evidentfary record, severityof Incident and Claimant's past dlsdpllnary record, the Carrier assessed Qltmant thlrtY (30) days on record of which fifteen (15) days would be served.
On March 17, 2017r the Organization and the Carrier agreed topro ssClaimant's discipline dispute for resoh tlon before thls Board usln1the ab reviated protedure provided for In Paragraph (K) of the PLB Agreement.
ftndlngs
Public Law Board No. 7544t upon thewhole record and all theeviden . finds that the parties herein are carrier and Employeswlthinthemeaning of the Railway Labor Act, asamended; that the Board hat Jurisdk:tIOn over thedispute heteln; and thatthe parties to the dispute were given due noti.::e of the hearingand did participate therein,
Pl& No.7544 CaseNo.69 AwardNo.69
Consistent with thePLB Agreement for this Board, the evtdentlary record Inthfs proceeding it comprised oftl'.le following: (A} notrce of Investigation.(B) transcript of Investigation an<:t all related exhibits, (C) discipline assessment letter and (0) on,propetty correspondence relatecho progression of theclaim,
Attheoutset of the hearfn&. the Organltatfon objected to the carrier's recordatlon of the proceeding with the transcrlptlonlst located atanoff-slte1 remote loc:atlon. Experience shows BMWE states, this
method of trans(:rlptlorn:an result In an Inaccurate and lncompleterec:on:L The Organization requested' that the transcrlptionlst be physically presentto record the proceedings. CP denied the BMWE request:
The Board findsthetranscript ofthe proceedlns complete and accuratt which issufficient forthis trlbunars useInreridertng a decision.
The circumstances which gave rise to this proceeding involve newand modified e,cpectattons for employees and breaks when fuellnt a CP vehlde during the workday, OnJa uarv10 l011, Claimant wason a crew Jn a CP truck which stopped for fuelat a service station and,.during thfs stopfor·tuel, Claimant purchased a drink and.used the restroom;. The Board flnda:that the need to stopfor fuef. was dtse.tothe night crew·using the truck butnot refuelinaltat theend of their shift.·The Manager ..
Production observed thetruck., Claimant and the crew; the Managet contacted the Roadmaster to determine the expectations for employe15 In this c:lrc:umstance. Stopping to fuehhe truck and ctalmant's break were In accordance with the expectations In onJanuary 10; 2017; After fueling ttie truck, Clalmantand thecrew cleaned aswltc:h on the westend of town In thewlndw snowy
conditions a5the Roadmaster had Instructed them todo.
After cleaning the west"f)nd SWitch and returolng to thetruck, Claimant and the crew received Instructions to proceed totheeast end of town toassist a train crew. The Man;.ipr approached Claimant and thecrew to clarifyand conflnn theexpectations alx)ut stoppingfor fuel and.breaks during the workday According: to the Manager, Claimant Was discourteous and.Insubordinate as he walked away while the Manager spoke with the crew and Claimant usiad profanity about work. Claimant denies use of profanity andstates the crewrecelved Instructions to proceed to theeast end of town for asslsttna a.train crew.dalmanutates he walked towards thetruck because he believed the Manager had concluded his conversation with the.crew. Claimant states there was noise caused by the diesel truclc and windy weather; hedid not hear anyone uset profanity or threaten the Manag . The carrier assessed Claimant a 3();-day recordsuspension of which15 days were served.
The Board finds there isInsufficient evidence to support t carrier's assessment ofdlsc:lpllne tG< Claimant. Claimant's use of profanity, If any,, was not directed at the Manager's authority or position as Claimant andthecrew received lnstruc:ttons to proceed tothe east endof town to assist a train crew. Claimant did not walk away from the Manager asan actof Insubordination or discourteous behavior bl.it to comply with thet Roadmaster'1 Instructions to assist ttaln crew movement. Even If the Manager had not concluded his conversation, Claimant was present at the end.of theworkday fortheentire meeting when the Manager addressed thecrew, again, about the Carrier's expectations for employees durlnc the workday. Since there II Insufficient evidence to support the carrier's position, the Board wHI sustain the clalnt, themark of dfsclpflne on Oalmant's record Ir rescinded and expunged and theOrganization's, requested remedy Is aranted.
PLBNo; 7544
CaseNo.69
AwardNo.69
Claim sustained.
Patrick Halter
Neutral Member
Carner Member
Dated onthis 5flt- day
of Jan.:, .20.a
Rvan datgo
Organization MemtNlt