SPECIAL BOARD OF ADJUSTMENT NO. 1112
BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYEES,
Vs.
BURLINGTON NORTHERN &
SANTE FE RAILWAY CO.,
CASE # 55 - Dennis D. Flanagan (30-day Record Suspension)
AWARD NO. 56
Dennis J. Campagna, Esq., Referee
William A. Osborn, Carrier Member
Roy C. Robinson, Organization Member
BACKGROUND
A.
Special Board of Adjustment #1112
This Special Board of Adjustment was created pursuant to the provisions outlined in a
Memorandum of Agreement ("MOA") between the Carrier and the Organization dated
September 1, 1982. Appeals reviewed under this MOA are expedited, and the Award
resulting from any appeal contain only the Referee's signature is considered "final and
binding" subject to the provisions of the Railway Labor Act.
B.
The Appellant
Dennis D. Flanagan, the Appellant at issue, was employed by the Burlington Northern
Santa Fe Railway Company (Carrier) on May 8, 1975. At all relevant times, the
Appellant was working as a Section Laborer, Broken Bow Section. The Appellant is
represented by the Brotherhood of Maintenance of Way Employees.
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C. The Charge at Issue
On or about January 31, 2003, as a result of a formal investigation conducted on Monday
January
6,
2003, the Appellant was served with charges, seeking a thirty (30) day Record
Suspension for his alleged violation of BNSF MOW Operating Rules 1.1.3, 1.2.7 and
1.2.5 for his failure to properly report by the first means of communication to the proper
manager, a personal injury incurred to his right rib area, while on duty or on company
property, while he was replacing ties in the East back track switch, at or near MP 175.8,
Broken Bow, Nebraska on the Sand Hills Subdivision, on Friday, December 13, 2002,
and the withholding of information from authorized supervisor regarding personal injury,
while assigned as Section Laborer, headquartered at Broken Bow, Nebraska.
D. Facts Gathered from the January
6,
2003 Investigation
On January 3, 2003, a formal investigation was initiated by William C. O'Donnell, as
investigating officer. At that time, The Appellant requested, and was granted, an
adjournment until January
6`h
in order that he could be represented by his local chairman.
On January
6`h,
the formal investigation reconvened, at which time the Appellant was
represented by R.I. Nickens, the Organization's Vice General Chairman. At such
Investigation, it was established that:
· An Investigation Notice had been sent to the Appellant on December 27, 2002.
The Appellant received this Notice on January 2, 2003;
· Rule 40 of the current Collective Bargaining Agreement (CBA) between the
Employer and the Union mandates that an employee must receive five days
written notice of an investigation.
· Ray Brennan, Roadmaster, Power River Division, testifying on behalf of the
Employer, stated that on December 9, 2002, the Appellant stated to him that he
was having a problem with his right side in the rib or ling area of his body. On
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December 18, 2002, at approximately 16:45 hours, the Appellant called to inform
him that he went to the Hospital's Emergency Room because he could not breath,
sleep or lay on his right side. The Appellant informed Mr. Brennan that the
Doctor indicated that he (Flanagan) had Pleurisy, and prescribed Ibuprofen and
Lortab. (Exhibit 12) Mr. Brennan testified that the first indication he had that the
Appellant's condition was work related was when the Appellant called him on
December 19, 2002, to inform Mr. Brennan that he had returned to the emergency
room, whereupon a different doctor diagnosed him as having "pulled muscles in
the right rib area", and advised him to work light duty from December 20`h to
December 26`h. It was during this conversation that the Appellant revealed, for
the first time, that "[h]e probably hurt himself while he put ties in on Friday
December 13`h, six days following the Appellant's sustained injury.
Mr. Brennan interviewed different section laborers, foreman and truck drivers that
were working in the same area as the Appellant on December 13 `h. The
individuals interviewed included Dale Scott and Kevin Rapp, truck drivers for the
Broken Bow and Ansley Sections respectively, Mel Anderson and Steven Stabb,
section foremen, each of whom gave statements to the effect that they neither
heard nor saw anything that would have indicated that the Appellant had sustained
a work-related injury on December 13 `h.
The testimony offered by the Appellant was in substantial agreement with that
offered by Mr. Brennan. The Appellant did, however, differ on one point -
maintaining that he informed Mr. Brennan, by cell phone, on the evening of
December 17 `h following his first visit to the Hospital's Emergency Room, that he
had sustained a work related injury, more specifically "[t]hat it was result of this
tie project on the 13`h." (Transcript at page 26) In addressing this issue, Mr.
O'Donnell resolved the credibility issue in favor of the position given by Mr.
Brennan, who was able to produce contemporaneous notes he had included in his
Day Planner (Exhibit 12). Respectfully. I find nothing in the record evidence to
disturb this holding by Mr. O'Donnell.
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POSITION OF THE PARTIES
A.
The Organization's Position
Initially, it is the Organization's position that the Carrier's service of the Notice of
Investigation fell short of the five (5) day written notice required under Rule 40. Such
time is necessary, the Organization maintains, in order to properly prepare for the
Investigation. By mailing the Notice on December 27, in the midst of the holiday season,
the Appellant received the Notice on January 2"d, less than the five days required under
Rule 40.
Next, the Organization maintains that pursuant to the Policy for Employee Performance
Accountability ("PEPA"), employees who have had no serious incidents for three years
or non-serious incidents for 12 months should be permitted to choose alternative handling
in lieu of the discipline policy. The Appellant's request for alternative handling was
denied. Pursuant to this same policy, doubts about how an incident should be handled by
a supervisor should "[e]rr on the side of leniency." Since this was not done in this case,
the Organization maintains that the Carrier violated its own policy, thereby tainting the
instant proceeding.
Finally, with respect to the personal injury sustained, the Organization maintains that
until the Appellant's symptoms reached the intolerable stage on December 17
`h,
he was
under the impression that his symptoms were nothing more than ordinary everyday
stiffness and soreness. However, following his visit to the emergency room on December
17`", upon becoming aware that his symptoms represented something more than simple
soreness, the Appellant maintains that he "promptly" reported the matter to Mr. Brennan,
his supervisor.
Given the foregoing, the Appellant seeks to have the instant charges dismissed in their
entirety.
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B.
The Carrier's Position
It is the Carrier's position that it has proven the underlying basis supporting the charge at
issue. In this regard, given that the substantive facts are not in dispute, the testimony
offered by Mr. Brennan, particularly following his interview with other individuals,
provides conclusive evidence that the Appellant did not report his personal injury by the
first means of communication to his proper manager, but instead, waited until December
19`", six days following its occurrence, to make his report to Mr. Brennan.
With respect to the Organization's challenge under Rule 40, the Carrier maintains that it
was in substantial compliance with this Rule. In this regard, the Carrier notes that the
Appellant's request was honored, thereby giving him additional time in which to secure a
Union representative, and to prepare his case.
Given the foregoing, the Employer urges that the charge against The Appellant be
upheld, and the 30 day Record Suspension ordered.
DISCUSSION
A.
The Role of the Referee in the Instant Matter
Pursuant to the Memorandum of Agreement between the parties dated September 1,
1982, the role of the Referee in this matter is three-fold:
I. To determine whether there was compliance with the applicable
provisions of Schedule Rule 40;
2. To determine whether substantial evidence was adduced at the
investigation to prove the charge at issue, and
3. To determine whether the discipline was excessive.
(MOA, Paragraph 8)
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B.
The Issue Regarding Compliance with Rule 40
Rule 40 provides, in substantial part, that an employee and the appropriate local
organization representative must receive
at least
five (5) days advance written notice of
the investigation. The stated purpose of the Rule is two-fold:
first,
to enable the
employee to secure proper representation, and
second,
to arrange for the presence of
necessary witnesses the employee might desire.
In the instant matter, it is undisputed that while the Notice of Investigation was mailed on
December 27, 2002, it was not received by the Appellant until January 2"d, one day prior
to the Investigation. However, when he appeared at the January 3`a investigation, the
Appellant requested an adjournment of the Investigation in order that he might secure
proper representation. In granting his request, Mr. O'Donnell suggested that the matter
reconvene on January 6`h, and asked the Appellant: "Is that agreeable to you, The
Appellant.", to which the Appellant responded in the affirmative. Had the Appellant
requested a few more days for the purpose of preparing his case, there is nothing in the
record indicating that Mr. O'Donnell would have denied his request. Moreover, there is
nothing in the record demonstrating that the Appellant or the Organization acting on his
behalf, did not have sufficient time in which to prepare their case, or call necessary
witnesses.
Given the foregoing, I find that there was substantial compliance with Rule 40.
C.
Substantial Evidence Exists to Support the Instant Charge
Initially, this Referee notes that he sits as a reviewing body and does not engage in
making
de novo
findings. Accordingly, I must accept those findings made by the Carrier
on the Property, including determinations of credibility, provided they bear a rational
relationship to the record.
Turning now to the merits of the Charge, Black's Law Dictionary, Fifth Edition, defines
"Substantial Evidence" as follows:
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Such evidence that a reasonable mind might accept as adequate to support a
conclusion. It is that quality of evidence necessary for a court to affirm a decision of
an administrative board. Under the "substantial evidence rule," reviewing courts will
defer to an agency determination so long as, upon an examination of the whole
record, there is substantial evidence upon which the agency could reasonably base its
decision.
Deferring to Mr. O'Donnel's determination as to credibility, I find and conclude that
substantial evidence exists in the record to reasonably conclude that the Appellant's first
report to his supervisor that he had sustained a job related injury occurred on December
19, 2002.
The record evidence reveals that the Appeallant's physical condition was such
that at some time prior to December 17
`h
, a date when the pain became to intolerable to
bear, his discomfort was such that he should have reasonably reported the situation to his
supervisor. In this regard, it is clear that the Appellant was aware that his aches and pains
were created by the work he had done given his admission that at first blush, he thought
such aches and pains were normal given his age and condition together with the type and
nature of the work he was performing. Accordingly, he was obligated to report, by the
first means of communication, at a time prior to December
19`h
the circumstances leading
to his discomfort. However, even assuming that he was truly unaware that the cause of
his condition was work related, there is no reason why he could not have reported same
to Mr. Brennan on December
17`h,
the date he went to the Hospital's emergency room.
Given the foregoing, I find and conclude that substantial evidence exists to prove the
charge at issue.
D.
The Appropriate Penalty
Having found and concluded that there is substantial evidence in the record to support the
charge at issue, there remains a question as to the appropriate penalty. Following a
careful review of the record in this case, I find and conclude that the Carrier's suggested
thirty (30) day Record Suspension is too harsh a penalty.
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During his representation of the Appellant in this matter, the Organization questioned
why this case was not handled under the Alternative Handling Procedures. The PEPA
Policy, governing the procedures used in cases of this nature, provides that its intent is to
"[s]upport BNSF's vision of becoming injury-and accident-free." In addition, the Policy
provides that where a rule violation might occur, the policy "[p]rovides a process at
arriving at an understanding of improvements needed to prevent similar rule violations."
Consistent with this stated objective, the policy further provides that "Alternative
handling may be offered by an employee's supervisor for a second or subsequent nonserious incident."t Respectfully, the Record does not contain any reason or rationale as
to why the Carrier chose to avoid review of this case under the Alternative Handling
Procedures. Accordingly, we are left with the Organization's unchallenged position on
this issue.
A review of the Appellant's Employment History reveals that while he has experienced
disciplinary action since his employment in 1975, the instant matter represents the first
time he has been charged with a failure to report a personal injury by the first means of
communication. Moreover, given the recognition that his personal injury was of the nonserious nature, there is no reason why alternative handling was not considered as an
appropriate procedure to drive home the importance of this Rule, as well as to advise the
Appellant of the need to prevent similar rule violations.
Given the foregoing, it is the determination of this Referee that this incident be treated as
if it had been processed under the Alternative Handling procedure. Accordingly, the
Appellant shall receive the proper coaching, counseling and/or training, as the Carrier
may determine, consistent with this method of addressing the instant non-serious incident
at issue in this proceeding.
' It should be noted that the PEPA Policy calls for a 10, 20 or 30 day record suspension for instances
involving a second, third or fourth non-serious rule violation respectively. In the instant matter, the
Carrier's 30 day record suspension for a first non-serious v tolauon transcends well beyond the bounds of its
policy.
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CONCLUSION AND AWARD
Given the foregoing discussion and analysis, it is the determination of this Referee that:
1. The Carrier has substantially complied with Rule 40;
2. That substantial evidence exists to support the charge at issue, and
3. The 30 day Record Suspension sought by the Carrier is too harsh a penalty.
Accordingly, the Appellant shall receive the proper coaching, counseling
and/or training, as the Carrier may determine appropriate, as if the instant nonserious incident at issue in this proceeding had been addressed under the
Alternative Handling Procedure.
6241 - r78 - 0 3
Dated Dennis C gna, Re ee
SB o. 12
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