BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES
V5.
MISSOURI-KANSAS-TEXAS RAILROAD COMPANY
I'
Roy R. Ray, Referee
STATEME=NT OF CLAIM:
1. The Carrier violated the effective Agreement by assessing
Track Laborer Lucius Williams, discipline of 30 days actual
suspension during the period June 20, 1967, to .
July 21; 1967. -
2. The Carrier shall now reimburse Claimant Lucius Williams for
this loss of wages 'suffered by him, account of the Carrier's
violation of the Agreement.
OPINION Or BOARD: On June 20, 1967, at 5 P.M. Track Laborer Lucius Williams
was held out of service by the Carrier for alleged misconduct at about 2 P.M.
that day, the notice stating that he was suspended for talking back to his.
supervisor and for insubordination. By letter of June 21 (received by
Claimant on June 22) the Division Engineer formally charged Willies..-is with
being quarrelsome and refusing to perform.. work he was instructed by Assistant
Engineer of Maintenance Meuth to do. It advised that a hearing on the charges
would be held on June 30, 1967. Hearing was held as scheduler) and a transcript of the proceedings was made. At the close of the hearing Division
Engineer Clark announced that Williams was found guilty as charged. On
July 5, 1967 the Chief Engineer Hunter assessed Williams a 30 day suspension
from service without pay, to run from June 20 to July 21. Hunter's decision
was appealed to Carrier's highest appeal officer and sustained by him.
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The Organization has challenged the suspension on the follouinh
grounls: (1) The charges contained in Clark's letter of June G1 ware not
specific as required by Article 23,- Pules 1 and 2 of the hgreenent. (2) The
hearing was not held within 10 clays of the charges as required by Rules 1 aril
2 of Article 23, and (3) Claimant was wrongfully held out of service pending
the hearing. The first taro grounds were emphasized in the processing of the -
claim on the property and the third was the Organization's main reliance in
its submission to this Board.
In our view the first two grounds are without merit. As to the first
we find no lack of specificity in the charges. Clark's letter stated the
offense with which Williams was charged; the date and tire of day of the
offensc-.allegedly occurred; and the Rules claimed to have been violated.
With reference to thetimeliness of the hearin< we find that it was held
within 10 calendar days of the date Williams was held out of service and
within 9 calendar days of the date the charges were preferred against
Claimant. The time limit provisions of Article 23 Rule 1, were, therefore,
complied with by Carrier.
The crucial question here concerns urhether Carrier was justified in
taking Claimant out of service pending hearing and decision. Article 23,
Rule 1 provides that an employee with 12 raonths or more of service will not
be disciplined or dismissed without first being given a_fair. and 4-npartial
hearing. It makes one exception, namely, that when the offense is
sufficiently serious an employee may be suspended pending a hearing. In
Award 11 of this Board we said that we interpreted "sufficiently serious"
to mean conduct involving moral turpitude, safety violations or other gross
misconduct providing reasons for immediate suspension. These night include
intoxication, fighting with other employees or attack upon a supervisor or
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use of threatening or abusive language to supervisors. We do not regard the
conduct charged here as being in that category. The 3'sxtra Gang Foreman who
took Williams out of service reported on Form 7.846 that he was suspended
because he talked back to Mr. Meuth and was insubordinate. The incident
occurred about 2 P.M. Claimant continued to work the remainder of the
afternoon, until 5 P.M., during which, time no further difficulty seems to
have transpired. Since neither Foreman Mirick nor Assistant Engineer Meuth
suspended Williams at 2 P.M. this would clearly indicate that they did not
consider the offense "sufficiently serious" to remove Williams from service.
If he then worked the balance of the day without further incident it was
reasonable to assume that he would continue to do so while awaiting hearing.
We find no urgency for the suspension prior to hearing. By our holding
cue do not mean to challenge the findings of the hearing officer (wbo was
also the prosecutor) based upon the evidence produced at the hearing. It
may well be that the facts established by the evidence presented justified
Carrier in imposing a suspension upon Claimant and that the penalty assessed -
was reasonable. But that is not the issue here. The point is that where
conduct such as that charged here is involved the employee is entitled to
have the facts determined in a hearing before he is removed from service.
Carrier cannot prejudge the, matter and escape the effect of Article 23,
Rule 1. As we said in Award 11 the very purpose of Rule 1 is to protect
employees from the kind of precipitate'actionwhichtook
place
herle. In
this connection we find
the words
of Referee Coffey in Award 5140 of the
Third Division especially appropriate:
"There remains, however, the question of whether the dis
ciplinary measures invoked were ,just and proper. The Board
is of the opinion that action taking employes out of service,
more or less As a matter of routine, pending hearing and decision
on alleged tules'violations, which are not aggravated or serious
per se, is inappropriate, hasty and ill-advised. This Carrier '
seems to misconceive the true purpose and intent of Rule 1, Article
21, of the Agreement, as it pertains to suspension of employes.,
pending hearing and decision based on charges of misconduct.
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"It would appear to be a reasonable construction of the rule
to say that only in cases involving charges of moral turpitude,
safety violations, and other pros: misconduct, should the employc·e he taken out of service before the hearing and decision.
It is the evident purpose of the rule to maintain the status quo
of employes, so far as possible, until the hearing, so that his
rights will not he prejudiced by precipitate action, and the
employer will not be confronted with charges of inflicting
punishment to off-set monetary losses
confronting it,
should the
earlier action be over-ruled.
"Ve believe the parties appreciate the need for protecting their
hearing procedures, and decisions of
management based
thereon, from
charges that the employe did not have a fair and impartial hearing.
By agreement they introduce into their relations the democrrtic
processes that only after hearing and "conviction" is one guilty
of the offense charged. Therefore, meticulous care should be taken
to avoid any claim that the guilt of the accused has been prejudiced.
Thus, the need to maintain the status quo, as far as possible, until
both sides of the controversy have been heard and a fair and impartial decision rendered.
"For the reason we believe the Carrier violated the Agreement,
when it suspended claimant before.a hearing and decision, that part
the disciplinary action cannot stand. Therefore, the aggrieved
employe is entitled to be paid for that period when he was
wrongfully held out of service."
Claimant eras held out of service from June 20 to July 21, 1467. We
hold that by taking Claimant out of service prior to the hearing Carrier
violated Article 23, Rule 1. Claimant'is entitled to payment for all
working days lost between June 20 and June 30. It appears, however, that
he has already been compensated by Carrier's Claims Department for 11 of
the 22 working days during the June 20 - July 21 period on the representation of Claimant that he was physically unable to work. If any of those
e
eleven days fell between June 20 and June 30 Carrier,is~entitled'~to deduct
those from the total for which it is to compensate Claimant.
A W A R D
The claim is sustained in part. Carrier is directed to compensate
Claimant Williams for any working days lost between June 20 and June 30
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for which he has not already been compensated by Carrier's Claims
Department.
Public Law
Board.No. 76
. r7 .~_y
Roy R. Ray
Neutral Member and Chairman
J. CunninFham/ F. R. Carroll
Employe Member Carrier Member
Dallas, Texas
December 12, 1968