Docket No. 51
PARTIES: Brotherhood of Maintenance of Way Employees
TO
DISPUTE: Chicago and North Western Transportation Company



      (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~. 9 ~(~ ,

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