PUBLIC LAW BOARD NO. 7564
Case No. 118/Award No. 118 Carrier File No. 10-21-0043 Organization File No. C-21-D040-3 Claimant: P.J. Donovan
BNSF RAILWAY COMPANY )
)
-and- )
) BROTHERHOOD OF MAINTENANCE ) OF WAY EMPLOYEES DIVISION )
By leter dated September 17, 2020, Mr. P.J. Donovan was issued a Level S 30-day suspension and a three-year review period because of his alleged “failure to verify that rails on racks were individually �ed down prior to unloading on May 21, 2020 at approximately 0941 hours… while working as a motor vehicle operator.” The Claimant allegedly violated MWSR 17.5.3, Rail Handling.
The Organiza�on’s October 13, 2020 claim from Randy S. Anderson, Vice General Chairman, appealed the discipline and characterized it as excessive and prejudicial. The Organiza�on requested that the discipline outlined in the leter received by the Organiza�on on September 18, 2020, be “overturned…and...[Claimant’s] personal record be cleared of this discipline and any men�on of this inves�ga�on.” The Organiza�on further contends that the Carrier’s failure to respond to the Organiza�on’s appeal leter dated October 13, 2020, submited via email, violated Rules 40 and 42 of the former-BN Agreement.
By leter dated May 23, 2020, the Claimant received no�ce that “[A]n inves�ga�on has been scheduled at 0900 hours, Wednesday, June 3, 2020 at … Lincoln, NE … for the purposes of ascertaining the facts and determining your responsibility, if any, in connec�on with your alleged failure to verify that rails on racks were individually �ed down prior to unloading on May 21, 2020, at approximately 0941 hours on the Creston subdivision, Lincoln, NE while
PLB NO. 7564
AWARD NO. 118
working as a motor vehicle operator.”1 A�er four postponements by mutual agreement, the inves�ga�on occurred on August 19, 2020, at 0900 hours.
The Carrier avers that the inves�ga�on was fair and impar�al, and that Claimant’s admission provided substan�al evidence regarding the viola�on. The Carrier states it did not violate Rules 40 and 42 because the Organiza�on failed to submit the October 13, 2020, email appealing the discipline. Further, the Carrier asserts that Sec�on III of the electronic claim handling agreement that was in effect on October 13, 2020, provides that:
The par�es recognize that issues may arise when using electronic mail… Should such issues arise, the par�es shall work together to find a mutually agreeable resolu�on. But technological failures shall not be used by either
party in arguing that a fatal procedural flaw occurred if it is proven the electronic mail was used consistent with the spirit and intent of the Agreement.
Sec�on I (A) of the Agreement states, “As soon as possible a�er receipt of a discipline claim, such designated officer will send a responsive email acknowledging receipt.” The Carrier submits that the Organiza�on should have no�fied the Carrier that it did not receive an email acknowledging the claim. Instead, the Organiza�on waited un�l December 17, 2020, to demand that the Carrier remove the discipline imposed on the Claimant.
The Organiza�on asserts that the Carrier violated Rules 40 and 42 by failing to process the appeal reques�ng the removal of Claimant's discipline.
Claimant is charged with viola�ng MWSR Rule 17.5.3, Rail Handling. During the inves�ga�on, Claimant admited he violated MWSR Rule 17.5.3. Claimant’s admission provided substan�al evidence regarding the viola�on.2 By leter dated September 17, 2020, Claimant was issued a Level S 30-day suspension and a three-year review period.
On October 13, 2020, the Organiza�on appealed Claimant’s discipline by emailing Steve Thompson, General Manager of the Heartland Division. Based on the record below, a ques�on exists as to whether or not Mr. Thompson was the General Manager of the Heartland Division at the �me the Organiza�on appealed Claimant’s discipline. The Carrier did not confirm receipt of the appeal leter. On December 17, 2020, the Organiza�on sent another leter to Mr. Thompson
1 Exhibit 1.
2 Carrier Inves�ga�on p.29-30, 32-33.
2
PLB NO. 7564
AWARD NO. 118
by Cer�fied Mail, Return Receipt Requested. This leter, marked “Return to Sender, Unclaimed, Unable to Forward,” was returned to the Organiza�on on January 9, 2021.
Rule 40 Inves�ga�ons and Appeals provides the following:
H. The provisions of Rule 42 shall be applicable to the filing of Claims and appeals in discipline cases.
Rule 42 Time Limits provides the following:
A. All claims or grievances must be presented in wri�ng
by or on behalf of the employee…to the officer of the Company authorized to receive same, within sixty (60) days from the date of the occurrence on which the claim or grievance is based.
Notwithstanding the procedural arguments of the Organiza�on, it is ques�onable as to whether the appeal was emailed and served on the appropriate Carrier manager. The Organiza�on never received no�ce confirming receipt of the appeal. The Organiza�on’s leter dated December 17, 2020, was outside the sixty (60) day period.
The Organiza�on also failed to submit evidence of the alleged October 13, 2020, email appealing the discipline. Sec�on III of the electronic claim handling agreement between the par�es, which was in effect on October 13, 2020, provides that:
The par�es recognize that issues may arise when using electronic mail… Should such issues arise, the par�es shall work together to find a mutually agreeable resolu�on. But technological failures shall not be used by either
party in arguing that a fatal procedural flaw occurred if it is proven the electronic mail was used consistent with the spirit and intent of the Agreement.
Sec�on I (A) of the Agreement provides that “As soon as possible a�er receipt of a discipline claim, such designated officer will send a responsive email acknowledging receipt.” The Organiza�on failed to no�fy the Carrier that it did not receive email acknowledgement ofits claim. Instead, the Organiza�on waited beyond the sixty (60) day period to demand that the Carrier remove the discipline imposed on the Claimant. As such the claim is denied as un�mely.
Claim denied.
3
PLB NO. 7564
AWARD NO. 118
This Board, a�er considera�on of the dispute iden�fied above, hereby orders that no
Award favorable to the Claimant be made.
Zachary Voegel, Organiza�onal Member Joe Heenan, Carrier Member
Melinda Gordon, Neutral Referee
DATED: June 20, 2023
4