BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES DIVISION

IBT RAIL CONFERENCE

and

UNION PACIFIC RAILROAD COMPANY
 (FORMER CHICAGO & NORTHWESTERN TRANSPORTATION COMPANY)
 Case No. 270
 Award No. 1~4 4
 STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood that:




2. As a consequence of the violation referred to in Part (1) above, Laborer D.T.
 Schmitt shall now be reinstated to service with seniority and all other rights
 unimpaired and compensated for all wage lost suffered. Any reference to this
 incident shall be removed from his record."
 FINDINGS:
 By notice dated March 31, 2005, the Claimant was directed to appear for a formal investigation and hearing "to develop the facts and place responsibility, if any, in connection with the charge that you allegedly made inappropriate comments to other employees on March 20, 2005, which is a violation of Rule 1.6 (Conduct) and Union Pacific's EEO Policy dated December 5, 2000. such violations constitute a Level 5 - permanent dismissal under Union Pacific's UPGRADE Policy. You are being withheld from service pending the outcome of the investigation." The investigation was conducted, as scheduled on April 7, 2005. By letter dated April 25, 2006, the Claimant



                                                  ~_.J me o

                                              h

                                                      Oil to


was informed that as a result of the investigation, he was found guilty as charged, and

 *l,a* l,o . ., l.o- .7: :__,.,.i G _. aL /'_._.: _ ~_ _ .rnI n n
 u~w~ u~ rIv'ao ucius utouuo~cu uutu utc t,.at11~ J Jet vlue. t fie Urgantzatlon thereafter flleQ
 an appeal, challenging the Carrier's decision to dismiss the Claimant. The Carrier denied
 the claim.
 The Carrier initially contends that there were no procedural improprieties in the handling of the investigation or the subsequent handling of the claim on the property. Rule 48's time limits were followed to the letter, and the Claimant was provided a fair and impartial investigation during which the Claimant and his representative were given full opportunity to present the Claimant's defense and interview witnesses called to support the charge.
 As for the Organization's assertion that the Notice of Investigation was in violation of Rule 48 because it listed March 20 as the date on which the inappropriate comments were made. instead of March 19 and 19 the Cnrrier maintains that this
                                      ------------ - - --


argument is of no substance. The Carrier emphasizes that Rule 48 requires that the

 arn»er amv,~n,.no l.o .~i ..Fat... «._...._~__ ~ _r .t ii> »
 ., _., v u.rmyw w uppriscu ut utG t1tGG1JG ttat`Ute Ul U1C CltargG~S), and the NOtlCe or
 Investigation in this matter satisfied this requirement, regardless of what date was
 indicated. The Carrier insists that the fact that March 20 was referenced in the Notice,
 rather than March 18 and 19, as the date of the inappropriate comments did not affect the
 Claimant's and his representative's understanding of the nature of the charges against the
 Claimant.
 The Carrier argues that the Claimant's own testimony demonstrates that he knew full well who his accusers were prior to the investigation, and he also knew the precise

                            2

                                              Sl. 90114

                                              a~wqr~


nature of the inappropriate comments that he was charged with making to his co-workers

 ~r,A tl,a Antor 'PA,- _ ..,a,. TL,.. n_....: _.. _ a _. a _ r
 .... w. uuwo m mvm, u,oWtiTicltW, tllG L.att1G1 Illslsts Lilal Ltle IelerenCe t0 1V1arCh 20,
 instead of March 18 and 19, in the Notice of Investigation had no bearing whatsoever on
 the Claimant's ability to understand the charge against him and, in turn, receive a fair and
 impartial investigation. The Carrier contends that the Board should disregard the
 Organization's argument on this point because it clearly is nothing more than an attempt
 to capitalize on an error in hopes of finding a technicality to excuse conduct for which
 there is no excuse. The Carrier maintains that such inconsequential errors should not be
 used to overturn discipline, particularly where, as here, the Claimant and his
 representative fully understood the nature of the charge against the Claimant.
 The Carrier goes on to emphasize that the Organization did not raise this argument until well into the investigation. The Carrier points out that if the reference to March 20 was so significant as to compromise the nYEanizatinn'c ability to defend the Claimant the Organization could have requested a recess, but it did not do so. The Carrier urges

 tlha Rnarrl to raiart th;r o ,,. __ _ t_._:_ r-- _, _:.__ I__ nt_:____-,_ A._·,
 .._-.. _-...._.. .,.. · ~..,.,, uuo c,igwia~,yy~ US a uaKJ tut VVG1umimig 1116 ~-lallllam J (11SIMSSa1.
 The Carrier further asserts that there can be no disagreement that the nature of the conduct attributed 'to the Claimant violated Rule 1.6 and the Carrier's EEO policy. The Carrier argues that the statements and testimony of the two complaining employees, if true, constitute more than substantial proof of the charges at issue. The Carrier emphasizes that the Organization never argued that the nature of the conduct described by these two employees, if true, did not violate Rule 1.6 and the Carrier's EEO policy, as charged.

                            3

                                              Award a14b


      As for the Organization's argument that the testimony and statements of these two


Pmv~n<rrac _rove ~nh.-a,~fol7 1.1.,., f'_....:_...,. 4_m..L_ U_-___:-_..:_ _ t__
 ~...~.y.~yw_ .rv.m, ic,.vm.awu, um ~cumGylVirLls olAt Ulm Li1G VLg'dLllG,A.L1Ut111A.J preSCilleCl
 nothing of substance to advance its theory that these two employees were prejudiced against homosexuals. The Carrier further argues that given that these two employees roomed together and were a captive audience of the Claimant for two days, it is logical to

 expect that they would give similar statements. The Carrier insists that nothing in their testimony smacks of prejudice, much less collusion. The Carrier points to the testimony of one of these employees that they were "good" with the fact that the Claimant had informed them that he was gay; this witness further stated that he found the Claimant to be very pleasant and had no problems with the Claimant. The Carrier asserts that there is no basis for the accusation that these two employees took it upon themselves to "punish" the Claimant, as the Organization has speculated.

      The Carrier then points out that there are ouestionc about wbv tl,e Claimant would


even discuss his sexual orientation with his co-workers. The Carrier maintains that this
 rpuplatinn nlnnP nrn>i~PC, ~ ,.o 4_,_ __.cc_:,...,* t,.,.:,. ..~ ._ _ ..i__ __._.r:~_:~.~_. _r..~_ _
 _.,..,.~._..__ u..,..._ 1,.,.. a,av_ " ~~__ u,~l ~uiiiUIQiiL UaoR LV qucsti0II Ulv tACUlut1LLY UL LLX
 Claimant's denial, as opposed to the statements and testimony of the complaining
 witnesses. The Carrier argues that the hearing officer logically determined that the
 complaining witnesses were not out to get the Claimant, but they simply became fed up
 with the Claimant's comments and conduct of a sexual nature, and they took steps to
 ensure that it no longer would interfere with their ability to perform their work. The
 Carrier therefore contends that there is more than sufficient evidence to support the
 finding of guilt in this case, and the Board should not substitute its judgment on questions

                            4

                                              SBA 94

                                              Award apt Go

of credibility.

                    s-t s---'ssa' was riot ailb-Arary or

                    ulaL me ~1 I LUIL Ul 1111 1

      The Carr e al- ~11 Al ~Iidma-~,

~~. ~
 capricious. Instead, dismissal was fully warranted by and consistent with the Claimant's
 violation of Rule 1.6 and the Carrier's EEO policy. Moreover, the Carrier's UPGRADE
 Discipline Policy requires the assessment of Level 5 discipline, permanent dismissal, in
 this case. The Carrier insists that a number of Board Awards have found that this policy,
 and the consistent discipline meted out under this policy for a proven rule violation, is
 fair and equitable, not arbitrary or harsh.
 The Carrier further contends that its EEO Policy is well communicated to all employees, including the Carrier's "zero tolerance" policy regarding any type of harassment. It is undisputed that the Claimant was fully aware of both Rule 1.6 and the Carrier's EEO Policy, and he was well informed about the Carrier's zero tolerance policy and the fact that conduct such as his could lead to dkrn_issa_l_. The Carrrrier insists that it cannot be said that dismissal in light of the Claimant's proven conduct was arbitrary or harsh, instead, the discipline .Jas AAl- ~onsistCiit wiui tire ~ai~icr'S policles arid practice, of which the Claimant was fully aware.
 As for any argument that dismissal was excessive in view of the Claimant's years of unblemished service, the Carrier argues that when the Claimant elected to engage in conduct that had the effect of interfering with his co-workers right to work in an environment free of harassment, the Claimant surely gave up any consideration that his years of service otherwise may have afforded him. The Carrier argues that it has the responsibility not to condone actions, such as the Claimant's, that have the effect of

                            5

restricting the rights of others to work in an environment free of harassment and

 .,+;.,,; a_+;,.,, -rt_. n : _._ : .,_ _. : .,
 iiiuiiuuauvii. 1116 %-MIRA 1IIMJts UlG.t It Ua1111ot 1111L1gate me consequence of me
 Claimant's conduct for any reason, as recognized by many Board Awards.
 'the Carrier ultimately contends that the instant claim should be denied in its entirety.
 The Organization initially contends the Carrier failed in its duty to provide the Claimant with a fair and impartial hearing, and violated Rule 48, by officially charging the Claimant with events that allegedly occurred on March 20, 2005, and then changing the dates to March 18 and 19, 2005, during the investigation. The Organization argues that the record proves that the Claimant did not make any inappropriate comments or statements on March 20, 2005.
 The Organization goes on to assert that in the situation giving rise to this dispute, three emDlovees conducted a dai]v cnnvercatinn in the r1ncP,1 nnnfinpa of a rnarhina rnh Two of the employees accused the third, an openly gay male, of inappropriate behavior.

 Thalh-*~_;.~.,t;._-.,.. ..,+._...a+1-a.. -,-_,____a..,_______A_ my
 i..v viswu~..c.uvu FoiaaL~ Out <uat uo oric QlJC 11CalU LIX a11CgCU l:oflvetsatlons. lne
 Organization emphasizes that the record fails to unequivocally substantiate the charges
 against the Claimant. l he Organization argues that it is open to speculation whether the
 accusations are true or whether the two heterosexual male employees are prejudiced
 against homosexuals and testified in a manner to punish the third employee. The
 Organization asserts that the testimony of these two employees is suspect in that they
 gave virtually identical written statements. Moreover, neither of these employees
 reported the alleged violation for three days, even though they had ample opportunity to
 6

                                              sBk gaq


                                              1~ . . ^w ea J in e 1

rs ca^.e gt of °1 l0 make such a report, and these employees also did not call the Hotline as required.

      ·r>n_ n_ral;zaL;V_ .. ._L__:___ .,__. t,_ _ , , ,,

me vyamc.nUVCi c1i1P11aN1GCtS U1aL the iccord demonstrates mat me Claimant had worked for the Carrier for more than twenty-eight years without similar complaints being made against him. 'the Organization also points out that Gang 9066 is comprised of about sixty employees, but only two employees made accusations against the Claimant, who had worked with this gang for three years. The Organization insists that there is no basis for the Hearing Officer's decision to credit the testimony of the two complaining employees, while completing disregarding the Claimant's denial.
 The Organization insists that the Carrier's mere suspicion that the testimony of the two complaining employees was truthful, while the Claimant's was not, does not satisfy the Carrier's burden of proof of showing guilt and upholding the dismissal of an employee with almost twenty-nine years of service with the Carrier.

      The Orffanizatinn llltimatPAv cnnlonrlc that the inetant claim ehn_lrl ha c_etainMl ;n

                    _____J -~___-__~,. .,____ __,.~ V_v..wao v_....vv ww.av vv as.ueuaamu aaa


its entirety.

      The . t:o~ 1.,.; , .. 1.1,. 4 .. ._t___ ,_ _ . ~: _ a,_ · ,r .,

ii,.V YcuU~ v~ius miamc tV IcsVIVC Ulcll WJPUle, LUIS Mauer UalIIC DC1VIe LUIS Board.
 This Board has reviewed the procedural arguments raised by the Organization, and we find them to be without merit. We hold that Rule 48's time limits were followed by the Carrier and that the Claimant was provided a fair and impartial investigation, as well as enough notice as to the nature of his alleged rule violations.
 This Board has reviewed the evidence and testimony in this case, and we find that there is sufficient evidence in the record to support the finding that the Claimant was

                            7

                                            s

                                            Aw-A r-d ac~


guilty of making inappropriate comments to other employees in March of 2005. The

 rnmlnante were nfo cox_ml __t_ ,_,7 _1,., t :_ ,._ _._ :_1_ r__~t__ __ __.1_._1___
 ............ , ,., , of a ,tl.nual 11auula, auu L,lcally InaFJp1Up11mu lul Ulu WU1Kplal:G.
 Once this Board has determined that there is sufficient evidence in the record to support the guilty finding, we next turn our attention to the type of discipline imposed. This Board will not set aside a Carrier's imposition of discipline unless we find its actions to have been unreasonable, arbitrary, or capricious.
 The Claimant in this case has been employed by the Carrier for nearly thirty years. There is no question that he engaged in serious wrongdoing, but to terminate his employment as a result of this after all of his years of service for the Carrier constitutes unreasonable and arbitrary discipline. This Board orders that the Claimant shall be reinstated to service, but without back pay. The period that the Claimant was off shall be considered a lengthy disciplinary suspension. AWARD:

      The claim is sustained in part and denied in part. The Claimant shall be reinstated


t'n CPYt77pP hilt lxritl·tn_t honlr vt fit- ., .tea A.-4 L1,.. ltl..:_~_~a __ -cc _7_ _11 1_ _ .... ...._ . _...., v»., ....,..~u,, vuvl~ ra:y'. L 11~ periuu L11aL L11C ~1d1111Al1L WdJ 011 MIMI UG considered a lengthy disciplinary ,7spens'

                      TER R. ~ YERS

                        eutr ember


OR ZAT10K M R CARiiIER ME7$ R
 DATED: ^-~" C~ DATED: ~ o 4~O

                            8