PUBLIC LAW BOARD NO. 7564
Case No. 123/Award No. 123 Carrier File No. 11-21-0100 Organization File No. S-P-2383-F Claimant: Michael Wesley Collier
BNSF RAILWAY COMPANY )
)
-and- )
) BROTHERHOOD OF MAINTENANCE ) OF WAY EMPLOYEES DIVISION )
By leter dated October 29, 2020, Michael Wesley Collier received no�ce of a Level S 30- day Actual Suspension and a One-Year Review Period effec�ve September 24, 2020, through October 23, 2020, for “misconduct between the dates of August 31, 2020 through September 22, 2020 … when you were assigned as a First Class Carpenter, Gang I.D. BBCX-0636 on the Seatle Subdivision” in viola�on of MWOR 1.6 Conduct and MWOR 1.15 Duty-Repor�ng or Absence.
The Organiza�on’s claim dated November 6, 2020, from Calvin Farley, Vice General Chairman, appealed the discipline, alleging procedural and substan�ve viola�ons regarding the inves�ga�on and characterizing it as excessive and without merit. The Organiza�on requested that the discipline outlined in the Carrier’s October 29, 2020, leter be “removed from [Claimant’s] record and he be made whole in compensa�on for the �me he was withheld from service, and appropriate days are credited him for re�rement and vaca�on computa�on.”
By leter dated September 24, 2020, the Claimant received no�ce to atend an
“[I]nves�ga�on… at 1330 hours, Friday, October 2, 2020, at … Seatle, WA … for the purpose of ascertaining the facts and determining your responsibility, if any, in connec�on with alleged viola�ons that occurred between the dates of August 31, 2020 through September 22, 2020, on or about 1330 hours, at or near MP 57.7, on the Seatle Subdivision, resul�ng in a report of your dishonesty and falsely repor�ng �me that was not worked, when you were assigned as a First Class Carpenter, Gang I.D. BBCX-0636. Alleged viola�ons include but are not limited to your
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dishonesty and falsifying records when repor�ng �me worked.” The inves�ga�on, postponed by mutual agreement on one occasion, was held on October 1, 2020, at 0900 hours.
The Carrier avers that the inves�ga�on was fair and impar�al, and the record proved by substan�al evidence that Claimant violated MWOR 1.6, Conduct and MWOR 1.15 Duty- Repor�ng or Absence and that his discipline was in accordance with the Carrier’s Policy for Employee Performance Accountability (“PEPA”).
The Organiza�on asserts that the Carrier denied Claimant a fair and impar�al inves�ga�on in viola�on of Rule 40 of the collec�ve bargaining agreement (“CBA”). Based on the Carrier’s procedural and substan�ve errors, Claimant’s dismissal is excessive and unwarranted. Moreover, the Carrier failed to meet its burden of proof because the record lacks sufficient facts and evidence.
Claimant hired in 2015, is a five (5) year Carrier employee. At the �me of the allega�ons, Claimant was a first-class carpenter on a mobile structures gang. According to the Carrier, Claimant’s assignment consisted of four (4) ten-hour shi�s per week, Monday through Thursday, 0600 to 1600 hours. Claimant’s supervisor, Mr. Van Deven, alleges that a GPS data search ins�gated an inves�ga�on demonstra�ng that Claimant and other gang members failed to work the en�re shi�. Claimant was withheld from service pending the inves�ga�on and charged with viola�ng MWOR 1.6 Conduct, and MWOR 1.15 Duty-Repor�ng or Absence.
MWOR Rule 1.6 Conduct precludes the following: Employees must not be:
4. Dishonest
Any act of hos�lity, misconduct or willful disregard or negligence affec�ng the interest of the company or its employees is cause for dismissal and must be
reported. Indifference to duty or to the performance of duty will not be tolerated.1
MWOR 1.15, Duty-Repor�ng or Absence provides:
Employees must report for duty at the designated �me and place with the necessary equipment to perform their du�es. They must spend their �me on duty working only
1 Carrier Exhibit 18.
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for the railroad. Employees must not leave their assignment, exchange du�es, or allow others to fill their assignment without proper authority. Con�nued failure by employees to protect their employment will be cause for dismissal.2
Over thirty (30) hours of claimed compensa�on could not be accounted for by Claimant during the inves�ga�on.3 The evidence demonstrated that Claimant was either at the hotel or a private residence during assigned work hours. He was not performing approved work at these loca�ons or comple�ng Web-based Training (“WBT”) as he asserted.4 Claimant’s defense that he was following the foreman’s instruc�ons and that he is not responsible for payroll entries fails to mi�gate Claimant’s failure to perform his du�es as required. Claimant’s other defenses were unsubstan�ated by the evidence.
Despite the Organiza�on’s claims regarding the Carrier’s procedural errors, Claimant received due process and was neither impaired nor prejudiced by the proceeding. CBA Rule 40(B) permits an employee to be held out of service pending inves�ga�on “in cases involving serious infrac�on of rules.”5 It is the Carrier’s preroga�ve to withhold employees commi�ng serious crimes or offenses from duty pending inves�ga�on.6 Further, the no�ce issued to Claimant did not lack specificity and complied with CBA Rule 40(C). The �meframe and nature of the alleged misconduct and the date, �me, and place of the inves�ga�on were all included in the no�ce received by Claimant.
Although Claimant is a long-term employee of the Carrier, unless the Carrier’s ac�ons are deemed arbitrary, capricious, or an abuse of discre�on, it is axioma�c that it is not the func�on of the Board to subs�tute its judgment for that of the Carrier in a disciplinary mater. Claimant’s Level S 30-day Actual Suspension and a One-Year Review Period discipline was appropriate and in accordance with the Carrier’s Policy for Employee Performance Accountability (“PEPA”).
2 Carrier Exhibit 19.
3 Exhibits 6, 8, 9, 10, 13, 16. References to the Inves�ga�on Transcript shall be denoted by (‘Tr.”) Tr. 19-39, 104-105.
5 Exhibit 7. CBA Rule 40(B) provides “In the case of an employee who may be held out of service pending inves�ga�on in cases involving serious infrac�on of rules the inves�ga�on shall be held within ten (10) days a�er the date withheld from service. He will be no�fied at the �me removed from service of the reason therefor.”
6 See Public Law Board 3460, Award No. 11, Public Law Board 2746 Award No. 17.
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Claim Denied.
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
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