SPECIAL BOARD OF ADJUSTMENT N0. 924
Docket No. 51
PARTIES: Brotherhood of Maintenance of Way Employees
TO
DISPUTE: Chicago and North Western Transportation Company
STATEMENT OF CLAIM: "Claim of the System Committee of ,the.
Brotherhood that:
(1) The twenty (20) day suspensions assessed for Assistant
Foreman J.P. VanDamme, Machine Operator L.J. Ronning,
and Trackmen T.-P. Freid and R.D.-Warn for 'your
responsibility for your failure to perform the
duties of Track Foreman, submission of a false
daily work report, failure to devote yourself
exclusively to the Company's service; and failure to
wear the required safety equipment while on duty and
employed the Track Department of the' Chicago and North
Western Transportation Company in Itasca, Wisconsin on
the dates of August 25, 1983, August 26, 1983, and
_ September 2, 1983, information which reached
the Assistant Division Manager-Engineering on September
' 7, 1983' was without just and sufficient cause,
on the basis of unproven charges and in violation of the
Agreement. [Organization File 7D-4407; Carrier
File 81-84-111-D1
(2) The Claimants shall be allowed the remedy prescribed in Rule
19(d).."
FINDINGS:
This Board, upon the whole record and all the evidence,
finds and holds that the employees and the Carrier involved are
respectively employees and Carrier within the meaning of the
Railway Labor Act as amended, and that the Board has jurisdiction
over the dispute herein.
On August 25, 1983, two members of Carrier's Police
Department were in Itasca, Wisconsin on a matter unconnected with
the'instant claim. While there, the Police Department members
overheard an employee mention that he intended to purchase beer.
The Police Department members consequently performed an Employee
Work Performance Audit at Itasca on August 25, 26, and September
2, 1983. As a result of the audit, Claimants were notified to
report for investigation, to be conducted on September 15, 1983,
of the charge as set out in the Statement of Claim above. After
two postponements, the investigation was conducted on November
10, 1983. A copy of the transcript has been made a part of the
record. We find that the investigation was conducted in a fair '
and impartial manner.
The Organization contends that Rule 19(a) provides that
prior to an investigatory hearing, an employee must "be notified
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in writing of the precise charge against him." The charge in
this case was vague and equivocal; the Carrier therefore violated
Rule 19(a). Finally, the Organization asserts that the Carrier
failed to prove the charges; the special agents' reports were
based on assumptions, conjecture, and falsehood.
The Carrier contends that the record evidence proves
that charges against the Claimants. The Carrier states that it
has a right to expect its employees to put in'a full day's work;
in the past, it has disciplined employees who were found guilty
of similar offenses. The Carrier maintains that the charges
against the Claimants were sufficient to allow the Claimants to
prepare a defense. Finally, the Carrier contends that .it was
neither arbitrary nor unreasonable in its assessment of
discipline in this case.
This Board has reviewed the lengthy. transcript and
other evidence in the record, and it finds that the charges
against the Claimants were specific enough to put the Claimants on
notice of the charges against them, as well as to enable them to
prepare a defense to those charges. Although the charges
included some language that may not have specifically related to
the action or inaction of each individual Claimant (such as the
failure to perform duties of track foreman could not have
related to the non-foreman Claimants involved in the same
incident), this Board-finds that the charges did include specific
language concerning failure to wear required safety equipment
while on duty and failure to devote oneself exclusively to the
carrier's service, which was enough to provide the requisite,
notice to each Claimant as to the charges against him. Since
there was evidence of those latter types of*wrongdoing by the
Claimants, this Board must find that the notice and charges were
sufficient and in compliance with the rules.
A review of the transcript provides ample evidence that
the Claimants failed to,wear the required safety equipment and
wasted an inordinate amount of time while on duty. The Carrier's
police kept lengthy time logs documenting the activities of the
Claimants, and those logs, which were basically unrebutted,
clearly demonstrated the Claimants' failure to devote themselves to
the Carrier's service on the days in question, as well as their
failure to wear the required safety helmets. Based on this clear
and convincing and unrebutted evidence, we must find that there
was a substantial basis for the Carrier to take disciplinary
action against the Claimants.
Once this Board has determined that a carrier has a
substantial basis in the record to impose discipline, we must
then turn our attention to the severity·of the discipline
imposed. It is fundamental that we do not second-guess a carrier
as to the severity of discipline unless the action taken by a
carr,ier is unreasonable, arbitrary, or capricious. In this case,
the Claimants each received a twenty-day disciplinary suspension
for the wrongdoing. This Board has reviewed the nature of the
offenses for which the Claimants have been found guilty, as well
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as the Claimants' previous employment records, and based upon
that analysis, we cannot find that the action taken by the
Carrier was unreasonable, arbitrary, or capricious. Hence, the
discipline shall stand.
AWARD:
Claim denied.
airman, Neutral Member
Ca rier : .mber Labor Member
Date:____C~.
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