No. 73/Award No.
Carrier File No. 10-16-0091 Organization File No. C-16-D040-7 Claimant: D. Robert Welsch
BNSF RAILWAY COMPANY )
)
-and- )
) BROTHERHOOD OF MAINTENANCE ) OF WAY EMPLOYES DIVISION )
By letter dated December 18, 2015 Welder D. Robert Welsch was given a Level S 30-Day Record Suspension and a One (1) Year Review period for his "failure to restore hand operated switch protecting access to the main track to the correct position on October 28, 2015." The January 13, 2016 claim from the Organization, Jim L. Varner, Vice General Chairman, appealed the excessive and meritless discipline and asked that it "be removed from his (Claimant's] record in accordance with Rule 40 of the current agreement."
By letter dated November 2, 2015 the Claimant was informed that "An investigation has been scheduled at 1000 hours, Wednesday, November 11, 2015, at the Conference Room, 3700 Globeville Road, Denver, CO, 80216, for the purpose of ascertaining the facts and determining your responsibility, ifany, in connection with your alleged failure to restore hand operated switch protecting access to main track to the current position on October 28, 2015." After two (2) mutually agreed upon postponements, the investigation was held on December 2, 2015 at the originally scheduled time and location.
The Carrier asserts that the Claimant's admission that he violated MWOR 8.2 Position of Switches by not restoring the hand-operated switch provides the necessary substantial evidence. Discipline was assessed in accordance with the Policy for Employee Performance Accountability (PEPA) Appendix A. The Organization asks for leniency, which is the Carrier's province, not the Board's, which should not substitute its judgment for that ofthe Carrier. Ifthe Claim is sustained, the Board should order removal of the discipline from the Claimant's records and no more. The Organization's procedural arguments, which have not been shown to prejudice the Claimant, are moot due to the Claimant's admission.
PLBNo.
Case No. 73/Award No. 73
Organization Position:
The Organization insists that the discipline was arbitrary and capricious and that the Claimant received neither a fair and impartial hearing nor the required due process. The Conducting Officer coerced witnesses. The Claimant threw the switch. Welding Supervisor Gribble said thathe wasnot near the switc but he was seen near the switch by others. Supervisor Gribble was responsible, but the Claimant was disciplined. Assistant Roadmaster Dunn's role was irrelevant and proves nothing. The Claimant is a valuable employee who has not been shown to be unsafe.
The Board1 having carefully read the transcript; finds that Conducting Office Paz did an excellent Job of conducting the investigation so that the Organization s allegations that. the investigation.was not fair and impartial and that the Claimant's due. process rights were violated are unavailing. The Board notes that in what seemed to be an inadvertent omissio MWOR 8.2 Position of Switches, was not identified inthe disciplinary letter as the Rule violated. The omission is not seen as problematic: because MWOR 8.2. was mentioned during the investigation and was entered as an exhibit Moreover.. the Claimant was specifically asked about MWOR 8.2. The Board notes that there is some' contlict within the various testimonies and some inconsistency within Scott Welsch's testimony, but the: inconsistencies are irrelevant and do not need to be addressed. None of the witnesses saw the hand-operated switch realigned to the main track. The Claimant forthrightly testified that he opened the switch to the siding•. did not restore the switch so that it was lined main to main, did not verify that the switch was properly lined, was solely
responsible for the failure to reline theswitch and thus violated MWOR 82 Position of Switches. The discipline was appropriate and the Board finds no reason to say more.
Ciaimdeni
This Board, after consideration of the dispute identified above. hereby orders thatno Award favorable to the Claimant be entered.
Austin, Texas
January 31; 201&