PUBLIC LAW BOARD NO. 7660
Brotherhood of Maintenance
of Way Employes Division - IBT and
Union Pacific Railroad
Case No: 162
Award No: 162
STATEMENT OF CLAIM:
"Claim of the System Committee of the Brotherhood that:
I. The Can-ier's discipline (dismissal) imposed upon Mr. C. Fletcher, by letter dated April 20, 2018, in connection with allegations that he violated Rules
1.6 Conduct-Immoral, 1.6 Conduct-Discomieous, 1.6 Conduct-the portion of the rule that states 'Any act of hostility, misconduct, or willful disregard or negligence affecting 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.', Items 10-I: Union Pacific Policies Policy to Address violence & Abusive Behavior in the Work Place Dismissal and Rule 1.13: Reporting and Complying with Instructions was arbitrary, unsupported, unwa1Tanted and in violation of the Agreement (System File T-l 848U-906/1707181 UPS).
2. As a consequence of the violation refe1Ted to in Part 1 above, Claimant C. Fletcher's ' ... Dismissal is expunged from his personal record. Claimant be immediately reinstated to service and compensated for all wages lost, straight time and ove1iime, beginning with the day he was removed from service and ending with his reinstatement to service excluding all outside wage earnings. Claimant be compensated for any and all losses related to the loss of fringe benefits that can result from dismissal from service, i.e., Health benefits for himself and his dependents, Dental benefits for himself and his dependents, Vision benefits for himself and his dependents, Vacation benefits, Personal Leave benefits and all other benefits not specifically enumerated herein that are collectively bargained for him as an employee of the Union Pacific Railroad and a member of the Brotherhood of Maintenance of Way Employes Division of the International Brotherhood of Teamsters. Claimant to be reimbmsed for all losses related to personal property that he has now which may be taken from him and his family because his income has been taken from him. Such losses can be his house, his car, his land and any other personal items that may be garnished from him for lack of income related to this dismissal.' (Employes' Exhibit 'A-2')."
FINDINGS:
Upon the whole record, after hearing, this Board finds that the parties herein are Can-ier and Employees within the meaning of the Railway Labor Act, as amended, and that this Board is duly constituted under Public Law 89-456 and has jurisdiction of the parties and the subject matter.
Prior to the incident giving rise to the cunent case, the Claimant had been dismissed by
the Carrier for a previous violation. The Organization appealed the prior dismissal and at the time of the instant dispute, the parties were awaiting a Board decision regarding the prior dismissal.
The instant dispute arose when on the morning of 3/14/18, the Carrier alleged that the
Claimant made threats or threatening remarks to Carrier employees and allegedly threatened violence on other Carrier employees.
By letter dated 3/29/18, the Carrier directed the Claimant to report for a fo1mal
investigation of the matter, which was held on 4/13/18. By letter dated 4/27/18, the Carrier infmmed the Claimant he was found guilty and was assessed a second dismissal from service.
In relevant part, the 4/27/18 letter states the following:
" ... After carefully considering the evidence adduced at the hearing, I find that the following charges against you have been sustained:
On March 14, 2018, at an Exxon Mobile Gas Station near Oak Street, which is near Mile Post 290.34 on the La Grande Subdivision in La Grande, OR, you made threatening remarks to Union Pacific employees and you threatened violence on other Union Pacific employees.
This conduct is a violation of the following rule(s) and/or policy:
1.6 Conduct - Immoral
1.6 Conduct - Discourteous
1.6 Conduct - the portion of the rule that states, "Any act of hostility, misconduct, or willful disregard or negligence affecting 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." Item 10-I Union Pacific Policies - Policy to Address Violence & Abusive Behavior in the Work Place - Dismissal
1.13: Reporting and Complying with Instructions
You are currently in a dismissed status. You are hereby dismissed for a second time from all service with the Union Pacific Railroad ... "
The matter progressed in the normal fashion and is now before the Board for final adjudication.
The Organization argues a) the Claimant was not subject to Carrier rules on the date
giving rise to the dispute, as he had been dismissed by the Carrier on 2/9/16 and was not employed by the Ca1Tier; the Can-ier failed to prove that a nexus existed which would allow the Can·ier to charge the Claimant with any rule violation and impose new discipline, b) the Ca1Tier failed to meet its burden of proof, and c) the discipline was arbitrary and unwarranted.
The Carrier argues a) substantial evidence was provided to prove the Claimant's culpability, b) the assessed discipline was reasonable and consistent with established policy and arbitral precedent, c) there were no procedural errors or affirmative defense that would WatTant voiding the discipline, and d) the Organization's remedy request was not grounded in the Agreement.
After a thorough review of the record, the Board finds the Ca1Tier provided substantial
evidence to support the cited rule violations. The Organization argues that the Claimant was not subject to Carrier rules as he had previously been dismissed by the Carrier and was working for another employer. As such, the Organization argues that the Ca1Tier lacked authority to charge the Claimant with a violation of CatTier rules since the Claimant was not employed by the Carrier. The Board respectfully disagrees. Under the facts presented here, the employer employee nexus was still intact since the Claimant's prior dismissal was on appeal and the parties were awaiting a decision on that appeal.
Testimony provided by employees Montgomery and Russell provided substantial evidence that the Claimant made verbal threats of violence against Carrier employees. 1 [T35, 21-24; T35, 27-32; T35, 34-35; T40, 26-29; T43, 2-6] A threat of violence in the workplace is a serious matter, and given the Claimant's behavior, the Board cannot find the Carrier acted in an unreasonable, arbitrary, or capricious manner in its second dismissal of the Claimant. Therefore, the claim must be denied.
Although the Board may not have repeated every item of documentary evidence nor all
the arguments presented in the record, we have considered all the relevant evidence and ai·guments presented in rendering this Award.
1 "T" followed by numbers means "Transcript" and the page and line numbers thereof.
AWARD:
The claim is denied.
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Paul Betts Neutral Member Dated:
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William C. Ince Carrier Member
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David M. Pascarella Labor Member Dated: 1-27-2020
AWARD 162 OF PUBLIC LAW BOARD NO. 7660
(Referee Paul Betts)
A dissent is required in this case because the Majority ignored black letter law in allowing the Carrier to uphold its discipline of an “employe” who was not even an employe of the Carrier at the time of his allegedly troublesome actions, which obviously thus occurred off-duty, to be sure. Employers that want to discipline employes for off-duty (and off-premises) conduct have to establish a “nexus” between the allegedly offending actions of an off-duty employe and the employer’s legitimate business interests. This “nexus” is not easy to establish even where the off- duty and off-premises conduct is perpetrated by an actual “employe”, or one with an employment relationship with the employer; in this case, the employment relationship was completely absent from the equation, as the Carrier had previously dismissed the individual involved in this case and this person had not been reinstated to work when he was somehow, inexplicably, fired (again).
The Carrier herein claimed that the individual had the potential to be reinstated to the Carrier’s employment, but many people not as yet hired by the Carrier have the same potential to one day work for the Carrier. Such obviously does not make those who have not even so much as applied for a job with the Carrier subject to Carrier-imposed sanctions and Claimant herein would not be any more subject to Carrier rules, simply because he had previously had an employment relationship with the Carrier that the Carrier had completely torn asunder. Indeed, it is a curious construction of matters that would allow for Claimant to yet be vulnerable to discipline by the Carrier (where others similarly situated obviously are beyond the reach of the same) simply because Claimant might be reinstated following the Carrier already having taken disciplinary action against him while he was an employe, but being found to have overreached, at a minimum, in that. Can the Carrier having wronged Claimant once before thusly furnish the grounds for it having power over him again? Such is an absurdity that no wronged employe should have to suffer.
In ending Claimant’s career herein and cancelling his significant hard-won seniority, the Majority effectively allowed the Carrier to move beyond merely being an employer regulating its own employes’ work-related conduct and enabled it to become a regulator of human conduct even on the part of non-employes. When the corporation usurps the role of the state and makes its own rules without representative government check and imposes the same on whomever it pleases, we have reached the fearsome state of corporatocracy. Significantly, the corporation in this case, the Carrier, imposed discipline on an individual who had no employment relationship with it at the time, even as the testimony of record in this case failed to establish that either of two (2) actual employe witnesses felt Claimant’s words to be threatening and both seemingly had long-standing cordial relationships with their ex-co-worker, rather than contentious ones. The Carrier’s own police force found no cause to so much as refer the matter for prosecution, as they found the evidence of any alleged threat inconclusive.
Adding to the irony is the fact that yet another non-employe of the Carrier’s (a gas station attendant) agitated the issue concerning the Claimant’s words and, this (not any threat felt by the Carrier’s own employes) seems to have egged the situation on and led to the employer taking action. The multiplication of non-employment related facets of this case shows this case to be exceedingly less and less related to any conceivable employment nexus, which is the absolute lynchpin that the Carrier had to prove up in order to even be able to entertain attempting discipline against Claimant. It is, then, obvious that the Carrier failed miserably here, in attempting to build that nexus which the facts simply will not bear in this case. To the extent that the Majority herein yet found grounds for upholding the Carrier’s ultimate discipline of Claimant, it clearly erred in its application of basic labor arbitration principles and the award herein cannot tenably serve as guidance in any future case.
Even if Claimant had been an employe of the Carrier’s at the time of this incident and even had his alleged conduct been legitimately proven (which proof the Carrier’s own police found essentially wanting, as mentioned above), still Claimant’s off-duty and off-premises conduct would fail to furnish grounds for discipline because there is absolutely no evidence of record that speaks to any business harm Claimant’s conduct likely or reasonably brought upon the Carrier. Certainly, the gas station attendant gave no evidence that the Carrier would be barred from using the gas station going forward nor that he had the authority to make this decision or had forwarded the matter to another who did. More to the point, the two (2) Carrier employes that Claimant was talking with at the time, testified at the investigation that they did not feel threatened by anything Claimant allegedly said. Neither of the Carrier employes, in other words, announced or even insinuated that they would have any problem with resuming work alongside and with Claimant. In these types of cases, such is a touchstone of the analysis - i.e., whether other employes would refuse to work with an employe accused of off-duty conduct, business harms to the Carrier being otherwise no more than speculative, at best. Much more egregious and proven misconduct on the part of an off-duty employe has been found to not reach the level of establishing a “nexus” between the employe and his employer, allowing the latter to discipline the former. In this regard, in Third Division 30554, for instance, an off-duty employe shot at a police officer and yet the carrier in that case was turned away in its attempt to try and discipline the employe for this incident. Key to this decision, again, was the lack of any evidence that fellow employes would refuse to work with the employe involved, as a result of the incident. In Third Division 42839, a short-time employe with just over a year’s worth of service [versus Claimant’s sixteen-plus (16+) years] was arrested on the Carrier premises for the crime of theft, an item which was reported in the local press and yet no sufficient “nexus” was found to afford the carrier therein with the ability to reach the employe therein with discipline. Crucially, this award cited the fact that other employes had no objection to working with the employe as a reason that the required “nexus” was lacking. Indeed, as Award 5 of Public Law Board No. 4111 notes, a review of the arbitral annals in this industry shows that even criminal conviction for such acts as disturbing the peace, pornographic photography,
shoplifting, passing bad checks, contributing to the delinquency of a minor [sexual involvement with a thirteen (13) year old girl] and assault and battery, amongst others, have failed to provide the required “nexus” that would allow an employer to discipline an off-duty employe, where evidence of business harm to the carrier involved was essentially lacking. Given this context and the heavy presumption thus established against employers being able to punish off-duty employe conduct, the fact that the Majority herein left intact the Carrier’s dismissal of a long-serving employe who was wholly without an employment relationship with the Carrier at the time is beyond the pale and requires this dissent.
For all the above-mentioned reasons, it is clear that the Majority erred in rendering its decision and that this award is palpably erroneous. Therefore, I respectfully dissent.
Respectfully submitted,
David M. Pascarella Labor Member