PUBLIC LAW BOARD NO. 7564
Case No. 125/Award No. 125 Carrier File No. 11-21-0101 Organization File No. T-D-6591-S Claimant: B. Loock
BNSF RAILWAY COMPANY )
)
-and- )
) BROTHERHOOD OF MAINTENANCE ) OF WAY EMPLOYEES DIVISION )
By leter dated November 6, 2020, B.Loock received a dismissal no�ce effec�ve immediately detailing “quarrelsome and discourteous conduct for sending offensive texts to your foreman and manager on September 26, 2020 while working as a tamper operator on gang TSCX0381 on the KO Subdivision” in viola�on of MWOR 1.6 Conduct.
The Organiza�on’s claim dated December 11, 2020, from Mathew C. Scherbing, Vice General Chairman, appealed the discipline, alleging procedural and substan�ve viola�ons regarding the inves�ga�on, and characterizing it as excessive and prejudged. The Organiza�on requested that any reference to the discipline outlined in the Carrier’s November 6, 2020, leter be “cleared” from [Claimant’s] record and that Claimant be “immediately reinstated and paid for all his lost �me and day to atend [the] inves�ga�on, including any and all over�me paid to the posi�on he was assigned to work, any expenses lost, difference in pay and … be made whole for any and all benefits.”
By leter dated October 2, 2020, the Claimant received no�ce to atend an
“[I]inves�ga�on… at 0900 hours, Sunday, October 11, 2020, at … Fargo, ND … for the purposeof ascertaining the facts and determining your responsibility, if any, in connec�on with your alleged quarrelsome and discourteous conduct and indifference to duty when engaging in unprofessional behavior when you refused to dial into the morning call while a passenger in a company vehicle on September 25, 2020 and sending offensive texts to your foreman and manager on September 26, 2020 while working as a tamper operator on gang TSCX0381 on the KO subdivision. The date [the Carrier] received first knowledge of this alleged viola�on is
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September 26, 2020.” The inves�ga�on was postponed by mutual agreement on one occasion. On October 13, 2020, at 0900 hours, the inves�ga�on was held.
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 and that the discipline was in accordance with the Carrier’s Policy for Employee Performance Accountability (“PEPA”).
The Organiza�on asserts that Claimant was denied a fair and impar�al inves�ga�on viola�ng Rule 40 of the par�es’ collec�ve bargaining agreement (“CBA”). Not only are the allega�ons un�mely, but Claimant’s dismissal is excessive and unwarranted due to the Carrier’s procedural and substan�ve errors. Moreover, the Carrier failed to meet its burden of proof because the record lacks sufficient facts and evidence.
Claimant is a fourteen (14) year Carrier employee. At the �me of the allega�ons, Claimant acted as a tamper operator on a mobile surfacing gang. According to the Carrier, Claimant sent “offensive text messages” to his foreman, Wayne Thompson, and his manager on September 26, 2020. Claimant concedes he sent the text messages at issue. However, the Organiza�on characterizes the text messages as “shop talk” regarding Claimant’s concerns and percep�ons regarding the foreman’s work ethic. A�er the inves�ga�on, the Carrier determined that Claimant violated MWOR 1.6.
MWOR Rule 1.6 Conduct precludes the following: Employees must not be:
Quarrelsome
Discourteous
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
The evidence demonstrated that on September 26, 2020, Claimant sent text messages to his manager and foreman.2 Examples of the text messages Claimant sent to his manager are as follows:
I will go to whichever 6700 or surf crew foreman you
1 Carrier Exhibit 18.
2 Claimant Exhibits 5,6, 7,13,14,15,
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want me to next year…and would prefer not babysi�ng a lazy dumbass like Wayne Thompson. I will not cover for such a lazy incompetent dumbass next year!...
I’m done dealing with the blatant stupid lying of Wayne Thompson.3
Below are some of the examples of text messages sent by Claimant to his foreman, Wayne Thompson:
So you did go on you’re phone while driving
and I told you not to beforehand? I am in the wrong while Wayne Thompson lies?
…I’m done with your lying incompetent stupidity!
…you a complete fucking idiot…4
…I’m not done spanking you for how stupid you are! Stop being so fucking stupid and allowing
it to be seen! You are a [p]at Anderson and should not be in the posi�on that you are!
I will cover for you and actually get the job done, Karen
You just drive while on your phone genius. Good luck keeping your job li[a]r.5
Notwithstanding Claimant’s defense that the above text messages cons�tute “shop talk,” it is crucial to consider the context of the messages. Based on accepted industry standards, some language is excused as the parlance of the Railroad industry when used in a general, descrip�ve, reac�ve context.6 However, personally insul�ng language is viewed differently. The context of Claimant’s text messages is mi�gated by safety concerns regarding the foreman’s conduct. However, this fails to excuse the invec�ve content of the messages. 7 Claimant’s text messages to the foreman and manager were quarrelsome and discourteous. His conduct in
3 Carrier Exhibit 13. See also Carrier Exhibit 5 containing addi�onal text messages sent by Claimant to his manager.
5 Carrier Exhibits 7 & 15.
6 See Public Law Board Third Division Award 42877, Public Law Board 2746, Award 8.
7Although the foreman resigned pending an inves�ga�on that may have resulted in dismissal, the foreman’s disciplinary issues are irrelevant to this proceeding.
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sending offensive texts went beyond “shop talk” and violated MWOR Rule 1.6. Claimant’s other defenses were unsubstan�ated by the evidence.
The Organiza�on’s alleged procedural errors neither impaired nor prejudiced the proceeding and Claimant’s due process rights. The Organiza�on contends that the inves�ga�on is un�mely because Claimant sent a text message containing similar language to his manager on September 9, 2020. The fact that the Carrier chose not to pursue allega�ons regarding text messages from September 9, 2020, does not preclude the Carrier from preferring the instant charges. The charges at issue only concerned the text messages sent on September 26, 2020, and complied with the �melines in CBA Rule 40. Moreover, 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. All other alleged procedural and substan�ve errors alleged by the Organiza�on are unsubstan�ated by the record.
Although Claimant is a long-term employee of the Carrier, his prior disciplinary record includes a Serious viola�on in 2019 for using “offensive, inappropriate and disrespec�ul language directed towards another Carrier employee.” Claimant also recently received An� - Harassment Discrimina�on training regarding inappropriate conduct, demeaning comments, and bullying.8 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. Given his prior disciplinary record and the misconduct he conceded he engaged in, Claimant’s discipline of dismissal was appropriate and in accordance with the Carrier’s Policy for Employee Performance Accountability (“PEPA”).
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
8 Carrier Exhibit 10.
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