PU8UC LAW BOARDN0.7544
Brotherhood of Maintenance of way )
RaUconference )
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cas.No.75
Symm FifeNo.0.173-16-510-01
Backgrpund
OnSe ber 2, 201&, the Cmler Issued to Claimant D. Reynolds a notice of formal lnvestlgatfon and. hearln;. The notice stated, In part,. thefollowing;c
"The purpose of thelnve$tltatr rlngIs to determine thefatts:and circumstances and to place responsibility, If any. In connection with youralleged use of foul language towardt'a CP managet and Insubordinationaftertold toleave CP property on September 1, 2016.This indicates a possible vlolatlan of,- but Isnot llmlted to,the followfn, rules:
GCOR t.8-tondUd
qcoa1.11• Reportfut and CompMnc With tnstructfoni"
Orr September 29, 2016, the lnvestlgatlon and hearing convened wherein Claimant and his representative presented testlmeny and one (1) exhibit and examined the Carri.er's twq (2) wftoesses
andfour (4}.ekhlblts.
onOctober 11, 2016, the Assistant Chief Tract• St. Paul Issued a letter to Claimant ng that the record of the proceeding establlshed Claimant's violation of the rulesas dtarged. Based on the lnvestlptlon: andhearfnl record, severity of the incident, and cralmant's past dlsclpllrn,ry history, CP dismissed Claimant from service effective Immediately. ·
On December 20, 20:16. the Orpnlzatlon and thecarrter agreed to prosress Claimant's discipline dispute for resolutfon before this Board using the abbreviated procedure provided for111 Paragraph O<) of the PlB Agreement.
Flndrna
Public law Board No. 7544, upon thawhole record and all the evidence., ffnds that the partl9$ herein are Carrier and Employes within the meaning of the Railway tabor Act,. asamended; that the Board has J1,irlsdldlon over the dispute herein; and that the parties tothe dispute were given due notice of the hearing and did participate therein.
case No. 75 AwardNo.75
Consistent with the PLB Agreement for this Board, theeYidentlary record in this proceeding Is comprised of thefollowing: (At notice of tnvestlgatlon,(B) transcript of Investigation and all related exhibits, (CJ dlsdpllne assessment letter and (D)on property correspondencerelated to progression of the claim.
At theoutset of the hearing, the Organization objected to the Carrier's recordatlon of the proceedina with thetranscrlptlonlstlocab:!d at an off..slte; remote lcicatlon. ExP'rienar shows, BMW£ states, this: method of transcription can result In an Inaccurate and Incomplete record. The Organization r$1Uests that thetranscrlptlonlstbe. physlcally present to record the proceedlnp. The Board finds the transcript of the proceedln& complete and accurate whichJssuffJcient for thistribunal's use In rendering a dectston.
The Organization asserts thatthe earner's decision towithhold Claimant from sarvlt.ct violated Rules 18 and 47 of the Asreement. The rulesstate that an employee with sixty (60) or.more days ofservka cannqt bedismissed at d Uned without a lair and Impartial hearlns; CP withheld daimant from service wlijlout c:ortductlnga heartns wherein Claimant could refute the alleged c:hara'5 and wltflout provldln1areason for withholdlna Claimant for thisalleged lnfractton of minor rules. Wlthholdlns Claimant from service shows a predetermined outcome by CP; Claimant has been denied due process and reinstatement prior tothe formaflnvestfgatfonand hearing ls requestecL The Carrier denied BMWE's req1.1est for Claimants reinstatement statlns that It acted In acd>rdance with1:J,e rufes.The Board finds that Claimant was not.denied due.prqc.u and received afair and Impartial hearing wherein, hewas provided an opportUnlty to refute the.alfegatrons and charged rules vfolatlons.
On September 1, 2Q16, Claimant wasa member of asurf crew assigned toclean the Amtrak Depot. The Roadmaster assigned dalmant, a machine operator withapproximately two(lf yearsofservk:lt, to assl$t aco-worker wlth clearJns dirt from around aswitch. After a brief time.atthe switch tt\e.Clalmant Informed the Roadmaster that he [Claimant) dfd not havethe correct or proper toolsfor theasst1nment and asked the Roadmaster forlaborers. The Roadmasteneplledthatthere were no laborers present but since he [Roadmaster) did not have any work for a machine operator; the Claimant would bea laborer. SPC Malntenance-of Wav Rules and Instructions, Item E.states that a machine operator not fully occupied with equlf)fllent must perform other duties assigned. In.a louder than normal voice Claimant. stated tothe Roadmaster8 F that.''
claimantstated he needed a srn,vel spade; the Roadmaster provided Claimant withone statlng:"Why dol\'t you use mine?" whereupon Claimant responded "You're a lazy piece ofshlt with a •.. white hard hat"' andwalked away from the Roadmaster towards theswitch. Three timesthe RoadmasteF directed Claimant off the property, stating to Claimantthat If. he did not leave the CP pol would be contacted; Claimant Ignored the Roadmaster's directive three (3) times. The Roadmaster contacted the Trainmaster; the Trainmaster arrived and directed Claimant. off the property, stating to ctalmant If he did not comply the police would escort him off the property.
Clafmant left the property. He denies useof any profanitybut acknowledges calllng the Roadmaster "laty"' and Ignoring the Roadmaster's directive to leave the property. ctaimanutates he Ignored the Roadmaster because he[Roadmaster} was emotionally upset, used profanity, stuck hisfinger In Claimant's face thereby provoking ClalmanUo state"I'm not your kid." Assuming Claimant's version of the Incident Isaccutat Itdoes not insulate him from theconsequences of hisstatements and actions
tow rds CP oftkl1:1ls with Jumdlt:tlpfl t>ver h Work t llfllfij!flls.
Case No. 7S Award No.7S
There lssubstantial evidence in support of theearner's dedslon to dismiss Claimant from service for the proven rules vlolattons. Since thedismissal Isnot arbltrnrv or anabuseof dlstretlo"' the Board willdeny
theclalrn.
Claim denied.
Patrl(kHa&,er
Neutral Member
Anthony Mcsso
carrier Member
Ryan Hidalgo
Orgal'llzatlon Member