SPECIAL BOARD OF ADJUSTMENT NO. 925
*
BURLINGTON NORTHERN RAILROAD COMPANY
* CASE NO. 15
-and-
* AWARD NO. 15
BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES
*
On May 13, 1983 the Brotherhood of Maintenance of Way
Employes (herinafter the organization) and the Burlington
Northern Railroad company (hereinafter the Carrier) entered
into an agreement establishing a special board of adjustment
in accordance with the provisions of Section 3 of the
Railway Labor Act. The agreement was docketed by the
National Mediation Board as Special Board of Adjustment No.
925 (hereinafter the Board).
This agreement contains certain relatively unique provisions concerning the processing of claims and grievances
under Section 3 of the Railway Labor Act. The Board's
jurisdiction is limited to disciplinary disputes involving
employees dismissed from service. Although, the Board consists of three members, a Carrier Member, an organization
Member, and a Neutral Referee, awards of the Board only contain the signature of the Referee, and are final and binding
in accordance with the provisions of Section 3 of the
Railway Labor Act. Employees in the Maintenance of Way
Craft or Class who are dismissed from the Carrier's service
may choose to appeal their their dismissals to this Board,
and they have a sixty (60) day period from the date of their
dismissals to elect to handle their appeals through the
usual appeal channels,,under Schedule Rule 40, or to submit
their appeals directly to this Board in anticipation of
receiving expedited decisions. The employee who is
dismissed may elect either option, but upon such election
that employee waives any rights to the other appeal
procedure.
The agreement further establishes that within thirty
(30) days after a dismissed employee's written notification
of his/her desire for expedited handling of his/her appeal
is received by the Carrier Member of the Board, that said
Member shall arrange to transmit one copy of the notice of
investigation, the transcript of investigation, the notice
of dismissal, and the dismissed employee's service record to
the Referee. These documents constitute the record of proceedings and are to be reviewed by the Referee. In the
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instant case, this Board has carefully reviewed each of the
above described documents prior to reaching findings of fact
and conclusions. Under the terms of the agreement the
Referee had the option to request the parties to furnish
additional data regarding the appeal, in terms of argument,
evidence, and awards, prior to rendering a final binding
decision in the instant case. The agreement further provides that the Referee, in deciding whether the discipline
assessed should be upheld, modified or set aside, will
determine whether there was compliance with the applicable
provisions of Schedule Rule 40; whether substantial evidence
was adduced at the investigation to prove the charges made;
and, whether the discipline assessed was excessive, if it is
determined that the Carrier has met its burden of proof in
terms of guilt.
Mr. Michael Craig Okler, the Claimant, who entered the
Carrier's service on August 10, 1978 as -a Laborer, was
dismissed from the service of the Carrier effective July 12,
1984 as the result of two investigations which were held
consectively on June 14, 1984 in the Roadmaster's Office,
Whitefish, Montana. At the time of his discharge, the
Claimant was assigned as a Machine operator working at or
near Olney, Montana.
Findings and Opinion
The Claimant was properly served with two notices of
investigation. One indicated that the Carrier desired to
determine his responsibility, if any, for allegedly
possessing a firearm on Company property. located in Bunk Car
BN951782 (this notice of investigation was dated May 23,
1984). The second notice of investigation which the
Claimant received indicated that the Carrier wished to
determine the Claimant's responsibility in connection with
alleged violation of Safety Rules 565 and 566 regarding a
collision involving a spike cleaner and a spike puller,
identified by Carrier car numbers. This notice of investigation was dated May 29, 1984. Investigations were scheduled
for June 6, 1984 but were postponed at the request of the
Claimant and were rescheduled for June 14, 1984.
Both notices of investigation advised the Claimant that
he should arrange for the presence of a representative of
the Organization and/or witnesses, if he so desired. The
Claimant acknowledged receipt of both notices of investigation and appeared for said investigations on June 14, 1984.
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The Claimant indicated in both investigations that he
was prepared to proceed although he did raise a question, at
the conclusion of the second investigation involving the
collision of the two Burlington Northern track vehicles,
regarding the lack of fairness in the investigation because
he did not have a representative of the Organization
available.to represent him.
This Board will first address that question. It is
clear from the record that the Claimant was fully and
properly advised of his rights to have an organization
representative at the investigation to represent him. The
Claimant indicated, during the course of both investigations,
that he had been unable to obtain the presence of an
organization representative. The record also establishes
that the Claimant did not request further postponement of
the investigations in order that he might effect the presence
of an organization representative nor did he object to the
investigations proceeding. It was only at the end of the
second investigation when the Claimant felt that the Carrier
was attempting to raise issues other than those specified in
the notices of investigation that he claimed some prejudice
as the result of the unavailability of an Organization
representative.
This Board is satisfied_that the Carrier complied with
Rule 40 of the collective bargaining agreement between the
organization and the Carrier and afforded the Claimant all
of his rights to procedural due process under the discipline
and investigation rules. The Claimant was afforded a full
and complete opportunity to raise all points and contentions
in support of his position; he was afforded more than adequate opportunity to call witnesses and have an Organization
representative available at the hearing; and he was given
full rights to examine and cross-examine witnesses during
the course of the investigation. Accordingly, we find there
is no procedural defect in the investigations and we will
turn our attention to the merits of the charges against the
Claimant.
The record establishes without contradiction that on May
23, 1984 the Claimant permitted Roadmaster Christensen,
Manager of Regional Gangs Hestermann and Special Agent
Bjorsness to inspect his bunk and his duffle bag which were
in bunk car BN941782. The record also establishes, without
contradiction, that Carrier supervision found a short
shotgun, approximately 26 inches long, of Italian make in
the Claimant's duffle bag. The Claimant acknowledged that
the weapon belonged to him and further testified at the
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investigation that the search of his duffle bag, bunk and
locker was conducted with his permission.
The evidence proves clearly that the Claimant violated
Safety Rule 572 which prohibits employees from having loaded
or unloaded firearms in their possession while on duty or
off duty on Company property, except where such employees
are authorized to do so in the performance of their duties
or have been given special permission to have such firearms
by the superintendent.
On page 7 of the transcript the Claimant acknowledged
that he had violated Safety Rule 572 on May 23, 1984.
Accordingly, this tribunal finds that the Carrier had
just and sufficient cause to impose discipline upon the
Claimant as a result of this violation.
The second investigation which convened on June 14, 1984
immediately subsequent to the first investigation contains
evidence in the record that shows without contradiction that
two track machines were traveling in a eastward direction on
May 29, 1984. A spike cleaner being operated by a Mr.
Peterson was in the lead. The Claimant was operating a
spike puller and was trailing Mr. Peterson's machine by
approximately 2,000 feet. The evidence of record indicates
without contradiction, that the spike puller collided with
the rear end of the spike cleaner. The cause of this accident was due in part to the fact that the Claimant was
traveling for some time without paying attention to what was
taking place in front of him. The Claimant was, for some
substantial period of time, attempting to obtain a cigarette
from his jacket pocket which was behind him and was not
watching the track. Accordingly, he did not observe the
spike cleaner slow down significantly as the result of other
activities on the track. By the time the Claimant looked up,
after obtaining the cigarette from his jacket pocket, he was
too close to the spike cleaner to apply brakes and to avoid
a rear end collision. The collision occurred and a reasonable amount of damage to the machinery also occurred.
The Claimant at no time denied that he was not attentive to the track in front of him while he was attempting to
obtain a cigarette from his jacket pocket. The essence of
the Claimant's defense is "accidents will happen." The
following colloquy between the Conducting officer and the
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Claimant is significant:
"204.Q. You say, nothing out of the ordinary
happened?
A. I didn't say that. I said I didn't do
anything out of the ordinary. Everything
I was doing up until the time that I hit
the machine was ordinary. I was
following in the same way, the whole bit,
you know I mean it was not out of the
ordinary for me to smoke a cigarette
going into the hole-after work.- I did it
everyday for a month and a half. That's
the whole thing that caused the whole
machine accident right there. I'm
willing to fess up to that. I know what
caused it. I'm not saying it wasn't my
fault, because it was.
205.Q. It was your fault?
A. It was definitely my fault that I wrecked
the machine. You know, that's not the
point that I'm making. I'm saying that
it was an accident. Accidents happen."
Carrier Safety Rules 600 and 602 provide that Machine
Operators must be concerned about safety and the safety of
men working with or near their machines and that an operator
in charge of a machine must cooperate to see that proper
methods are used in performing work with that machine and
that such machines must be operated in a safe manner. Rule
600 further provides that a Machine operator will be held
responsible for any negligence on his part.
The record is abundantly clear that Claimant Okler was
guilty of violating both of the above stated rules. The
Claimant admitted his dereliction. It is true that
"accidents will happen". If an accident was beyond the
control of an employee or was caused by an "act"
of God" then a Board such as this might find reason to
excuse a charged employee with alleged violations. However,
that is not the case here. The Claimant admitted his
responsiblity for the accident and the evidence of record
supports that admission.
Therefore, this Board finds that the Carrier had just
and sufficient cause to impose discipline upon the Claimant.
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A review of the Claimant's prior disciplinary record does
not give this Board any reason to conclude that the Carrier
was arbitrary or excessive when it dismissed the Claimant
from service.
Accordingly, the claim will be denies.
Award: The claim is denied.
This Award was signed this 23rd day of January 1985 in
Bryn Mawr, Pennsylvania.
~<K,·
Richard R. Rasher
Chairman and Neutral Member
SBA No. 925