Case No.: 21/Award No.: 19
System File No.: UP: 158027/BMWED: CE1000l 212A
Claimant: Laquantius Harris
UNION PACIFIC RAI LWAY COMPANY )
)
-and- )
) BROTHERHOOD OF MAINTENANCE ) OF WAY EMPLOYES DNISION )
I. The Level 5 UPGRADE discipline assessment (dismissal from service) to Mr. L. Harris for an alleged violation of Union Pacific Rules 1.6 (Conduct - Pait 6: Quarrelsome), effective April 7, 2010 was not justified.
2. As a consequence of the violation refetTed to in Part 1 above, the Carrier shall ove1·tum the discipline, reinstate Claimant to service, and compensate him for his losses pursuant to Rule 22(f).
By letter dated December 7, 2012, the Claimant was directed to attend the investigation and hearing on December 18, 2012 "to develop the facts and place responsibility, if any, based on the alleged incident between yourself and Mr. Willard, that while employed as Trackman on Gang 1108, at Dolton, Illinois, near Milepost 0.5, at approximately 1030 hours, on November 26, 2012, you allegedly violated Union Pacific's Conduct Rule."
The letter further identified the Conduct Rule as Rule 1.6 Conduct (6) QuaITelsome and noted that a proven violation could result in a Level 5 discipline assessment (permanent dismissal) under the Carrier's UPGRADE pol icy. The Claimant was also notified that he was being withheld from service pending the results of the investigation. The investigation was postponed until December 21, 2012
Witnesses provided substantial proof of physical contact, threats and a volatile situation in which the Claimant played a part. His behavior was intolerable. Safety is critical so that a violation of Rule 1.6 (Quarrelsome) warrants discipline that the Board should not disturb. The
investigation was scheduled in accordance with Rule 22(i) as there was mutual agreement on a postponement so that necessary individuals could attend. The Canier did not fail to give the Claimant a copy of the CBA because he never asked for one. The pre-i nvestigation knowledge that the Hearing Officer had of the events in question did not per se create an unfair and pmtial hearing. Other boards have made similar rnlings. The Charging Officer and witnesses were sequestered together because of limited available space. The witnesses were made available to provide the Claimant with a fair hearing. Questioning by the Hearing Officer after closing arguments was necessary to ensure a record containing all pertinent information and did not prejudice the Claimant. There was an option, but no requirement, that the Claimant have a representative present during on-property questioning. The Claimant's due process rights were ensured by a fair and impartial hearing after he was informed of the charges against him.
The investigation and hearing was not conducted within 20 days of the date on which the Claimant was suspended from service, nor did the Carrier make every effort to have the investigation within 20 days. This requires a fully substantiated claim, as boards have held that time limits will be strictly enforced. The Carrier did not provide a fair and impartial investigation. The Hearing Officer, who did not preside in a fair and impartial manner, previously had discussed the case with the Charging Officer, who was also a witness for the Carrier. Furthermore, the Charging Officer and witnesses were sequestered together. The Hearing Officer reopened the investigation after closing statements and constantly overruled objections. The matter was prejudged by a Hearing Officer intent on building a record for an arbitrator. The Carrier has failed to meet its burden of proof to show a violation by the claimant. There was a brief exchange of words involving everyday railroad language-nothing that could be characterized as quarrelsome. Also, witnesses provided conflicting testi mony, creating a "net wash." The dismissal was unwarranted, serving only to punish rather than correct an employee with no prior disciplinary history.
The Organization has raised several procedural or due process challenges, which the Board considers prior to consideration of the merits, staiting with the timing of the investigation. Rule 22(i) embodies the parties' agreement that the "Canier will make every effort to schedule and hold a formal investigation within twenty (20) calendar days of the date the employee is suspended. . ." That language is not absolute, and rovides for at least a modicum of flexibility. The investigation originally was set for the 22" day after the Claimant was withheld from service and by mutual agreement was postponed for an additional three days. The Board does not find that the above-noted facts resulted in a contract violation in this case.
The decision of Conducting Manager D. P. O'Hara to reopen the investigation following closing statements was faulty, constituted poor practice and should not be repeated in the future by this or any other Conducting Officer. Claimants and/or their representatives have a right as a matter of due process to make closing statements that are responsive to all of the testimony and
exhibits in the record. If the Conducting Officer believed that the Claimant's tepresentative included supposed new evidence or a new contention in his closing statement, the Board believes the Conducting Officer had a right to note on the record his belief that this was new evidence or new contention as would a Carder officer in his or her later response to the Organization's appeal, assuming discipline was levied. The Board considers closing statements simply as statements and not as evidence. Despite the inapprnpriate reopening of the hearing, in this instance the Board does not find that this constituted "harmful error" in that it altered the outcome of the investigation. Nor does the fact that the Charging Officer and witnesses were sequestered together require that the claim be sustained.
Information about the incident obtained by the Conducting Officer prior to the investigation did not per se lead to an investigation that was unfair and partial. Conducting Officer O'Hara was informed that something had occurred, but he did not conduct an informal investigation to determine the nature of the incident involving Claimants Harris and Willard. While Conducting Officer O'Hara's conduct of the formal investigation was imperfect, the Board does not find that this led to an altered outcome.
Claimant Harris, who had only seven months' tenure, described the incident as only a brief exchange of words but nothing physical. There is substantial evidence showing that Claimant Harris initiated the incident by essentially getting in Mr. Willard's face and cursing because Claimant Harris was angry at being left behind by Mr. Willard earlier that day. Truck Driver Walwer testified that he witnessed Claimant Harris push Claimant Willard after the latter had pushed him with an elbow. Machine Operator Riley heard an argument, although he did not hear specific words, but saw no physical contact. There is no reason to believe that either Mr. Walwer or Mr. Riley had reason to provide false testimony. Furthermore, Mr. Willard said that he was pushed by Claimant Harris. There is substantial evidence that, while neither prolonged nor violent, this incident involved more than just 'jawing" between two employees. After Claimant Willard elbowed Claimant Harris, the latter had the choice of disengaging and walking away or remaining involved with Mr. Willard. Claimant Harris made the wrong choice when he pushed back.
Railroad work is inherently dangerous, requmng continuous concentration and the application of safe practices to avoid if at all possible accidents that could result in personal injury and even death and property damage. Those who engage in any sort of workplace violence may create an unsafe situation not only for themselves but also for those around them who are distracted by the altercation. Because of this, the Carrier has both a right and an obligation to enforce a zero tolerance policy for fighting of any kind and even for behavior that is merely quarrelsome. Rule 1.6 so states. The UPGRADE discipline policy has found favot· in pdor awards. The Board finds no reason to substitute its judgment for that of the Carrier in this case.
Claim denied.
The Board, after consideration of the dispUte identified above; l1ereo,orders that no award favorable to the Claimantbe entered.
Austin"'Texas
February:6,. 20lti
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