BEFORE PUBLIC LAW BOARD NO. 7602 AWARD NO. 57
BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES DIVISION AND
BNSF RAILWAY
BNSF FILE NO. 11-15-0498 BMWED FILE NO. T-D-4741-M
Claimant: M. Metzinger STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood that:
Claim was filed September 10, 2015 on behalfM. L. Metzinger when the Company assessed discipline of a Level S, 32 day Actual Suspension, with a one (1) year probationary period. The Carrier assessed the discipline on Claimant when the FOREMAN TOLD HIM TO LEAVE AND GO HOME on June 5, 2015.Claim was
filed September 10, 2015 on behalf of M. Metzinger when the Company assessed discipline of a Level S, 32 day actual suspension, with a one (I) year probationary period. The Carrier assessed the discipline on Claimant when the Claimant left his machine to get a part for his machine.
Findings:
The carrier or carriers and the employee or employees involved in this dispute are respectively carrier or employee within the meaning of the Railway Labor Act as approved June 21, 1934.
Public Law Board 7602 has jurisdiction over the parties and the dispute involved herein.
Parties to said dispute were given due notice of hearing thereon.
Claimant was notified in a letter dated June 12, 2015:
An investigation has been scheduled at 1300 hours, Monday, June 15th, 2015, at the BNSF Depot, 1801 Highway 75 N., Sioux City, Iowa 51105, for the purpose of ascertaining the facts and determining your responsibility, if any, in connection with the alleged unapproved absence on Friday, June 5th, 2015, and falsification of time. The date BNSF received first knowledge of this alleged violation is June 8th, 2015.
This is to advise Rocky A. Miller is being withheld from service pending results of investigation.
This is to advise Ross F. Schenk is being withheld from service pending results of investigation.
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This is to advise Michael L. Metzinger is being withheld from service
An investigation was held and Claimant was notified in a letter dated July 10, 2015:
As a result of investigation held on Monday, June 15, 2015 at 1300 hours atBNSF Depot, 1801 Highway 75 N, Sioux City, IA, 51105 you are hereby assessed a Level S Actual Suspension for your unapproved absence on Friday, June 5, 2015 and falsification of time.
This actual suspension will be served as 32 days Actual Suspension as follows: June 9, 2015 through July 10, 2015.
In addition, you are being assessed a One (1) Year Review Period that commences on July 10, 2015. Any rules violation during this review period could result in further disciplina1y action.
It has been determined tlu·ough testimony and exhibits brought forth during the investigation that you were in violation ofMWOR 1.6 Conduct.
In assessing discipline, consideration was given to your discipline record and the discipline assessed is in accordance with the BNSF Policy for Employee Performance and Accountability (PEPA).
The Carrier argues that there are no procedural defects in the instant matter. The evidence shows that Claimant and his coworkers left work early yet recorded a full day of work. Their truck was observed at the hotel for the entire afternoon when they should have been at their assigned duties.
The Organization summarized their position in a letter dated December 15, 2015:
First, the discipline assessed by the Carrier in this case is excessive and unwarranted and frankly, its charges were unproven. Mr. Metzinger was instructed by his Foreman that he could head home. Mr. Metzinger does not enter time nor does he have access to the timeroll. Essentially the Carrier, after this investigation, wants you to question everything the Foreman says and call the Roadmaster for anything. Is this really how they see things? As we will describe below, the Carrier's assessment of Level S and Mr. J. R. Heenan actual suspension/ based on the facts in this case/ is arbitrary and extremely harsh. The Organization also reminds that Claimant has over three decades of service to the Carrier without discipline.
The Board sits as an appellate forum in discipline cases. As such, it does not weigh the evidence de nova. Thus, it is not our function to substitute our judgment for the Carrier's judgment and decide the matter according to what we might have done had the decision been ours. Rather, our inquiry is whether substantial evidence exists to sustain the finding against Claimant. If the question is decided in the affirmative, we are not warranted in disturbing the penalty absent a showing that the Carrier's actions were an abuse of discretion.
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The Board has reviewed the evidence. There are no procedural violations which void the discipline. On the merits we find that here is no substantial evidence in the record to support the discipline .
There is no substantial evidence in the record to support the discipline .
Claim sustained.
This Board, after consideration of the dispute identified above, hereby orders that an award favorable to the Claimant be made. The Carrier is ordered to make the Award effective on or before 30 days following the postmark date the Award is transmitted to the parties.
Neutral Member
Carrier Member
June 14, 2018
Organization Member