SPECIAL BOARD OF ADJUSTMENT NO. 925
*
BURLINGTON NORTHERN RAILROAD COMPANY
* CASE NO. 18
-and-
* AWARD NO. 18
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. Danny Lynn Garner, hereinafter the Claimant, entered
the Carrier's service on May 12, 1972 as a Section Laborer.
The Claimant was dimissed from service on December 5, 1984
as the result of an investigation held on November 9, 1984.
The Claimant was dismissed for allegedly violating Carrier
Safety Rules 564 and 574 as it was alleged that he engaged
in conduct unbecoming of a Burlington Northern employee and
had subjected the Carrier to criticism and loss of good will
as a result of his conviction on July 12, 1984 for
possession of cocaine with intent to deliver. The Claimant
was also charged with alleged misconduct for the manner in
which he obtained a work release from the Carrier. At the
time of his dismissal the Claimant was assigned as a Foreman
on Surfacing Gang RN No. 15 and was working between Lincoln
and Aurora, Nebraska.
Findings and Opinion
The record evidence established at the investigation
demonstrates clearly that the Claimant was convicted on July
12, 1984 for possession of cocaine with intent to deliver.
The record further establishes that the Claimant was incarcerated on October 12, 1984 as a result of the abovereferenced conviction.
On or about August 30, 1984 the Claimant's direct supervisor, Mr. Thomas M. Mroczek, a Roadmaster, wrote a letter
"of recommendation", at the Claimant's request, to a Mr.
Rowoldt an official with the probation department or the
court system, in which the Claimant's supervisor Mroczek
stated in relevant part as follows:
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°Mr. Dan Garner asked me to write to you about his
work record, etc.
Mr. Garner has worked on my territory which is
Lincoln to Ravenna for most of his employment with
the Burlington Northern Railroad.
During this time he has very good work attendance
and has gotten alot of work done for me as Section
Foreman and as Extra Gang Foreman on various gangs
between Lincoln and Grand Island."
The essence of the Carrier's case against the Claimant
involves the contention that the Claimant by his criminal
conduct (possession with intent to deliver cocaine in
Nebraska is a felony) damaged the reputation and good will
of the Carrier and thus the Claimant engaged in conduct
unbecoming an employee which violates specificed Safety
Rules. Secondly, the Carrier dismissed the Claimant for his
allegedly obtaining a "letter of recommendation" from Mr.
Mroczek under "false pretenses". That is, the Carrier contends that the Claimant did not advise Mr. Mroczek that he
was seeking this letter of recommendation due to the fact
that he had been convicted of a felony. The Carrier
apparently believed that Mr.-Mroczek, had he been aware that
the letter of recommendation he was writing would have been
used by the Claimant in connection with his conviction of a
felony, would not have written such a letter.
The essential contention of the Organization is that
Carrier officials, including Mr. Morczek and a Mr. Kinney,
another Roadmaster, were fully aware of the Claimant's conviction as well as the Claimant's drug problem far in advance
of the Carrier's issuing a notice of investigation for the
alleged infractions. The organization contends that it was
common knowledge in the work place that the Claimant had
been arrested and convicted of a drug related charge and
that the Claimant had a drug problem as far back as July of
1984. The organization contends that when the Carrier did
not issue a notice of investigation until October 26, 1984
that it violated the time requirements in Schedule Rule 40
which requires the issuance of a notice of investigation
within 15 days of the date that the Carrier is aware of the
alleged violations. Secondly, the Organization contends
that the Carrier failed to conduct a full and fair investi-
gation when it refused to recess the proceedings in order
that the organization could obtain the presence of two wit-
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nesses who might testify to the fact that Mr. Mroczek was in
fact fully aware of the Claimant's situation as far back as
July of 1984.
This Board is going to sustain the Organization's claim.
We could sustain this claim on both the procedural as well
as the substantive contentions raised by the Organization.
First, let us briefly discuss the question of whether
the Claimant received a full and fair investigation. At
page 16 of the transcript during the organization's examination of Mr. Mroczek, Mr. Mroczek was asked whether he
recalled a conversation between himself and the Claimant
regarding the Claimant's conviction for possession of
cocaine. Mroczek contended that he did not recall such a
conversation and the Organization representative then
desired to call two witnesses who were allegedly present
during this conversation. The conversation was alleged to
have taken place on or about August 10, 1984 approximately
70 to 80 days prior to the Carrier's issuance of the notice
of investigation. When Mr. Mroczek could not recall the
conversation the Organization representative requested a
recess in order that he might have a Mr. Theis and a Mr.
Walters who were witnesses to this alleged conversation
attend the investigation and testify. The Organization
representative indicated that it would take the two gentlemen approximately an hour to reach the site of the investigation. The organization representative was advised that
the investigation would proceed and that he would not be
permitted to call additional witnesses as the Claimant had
had ample opportunity to notify the witnesses that were
necessary.
This ruling by the Conducting officer was arbitrary,
capricious, and denied the Claimant of his rights to a fair
and full investigation. The Organization representative
conducted himself throughout the course of the proceedings
in a most professional and gentlemanly manner; he never
engaged in disruptive conduct; he raised few objections,
although those that he did raise were well stated; and, his
request was a courteous and reasonable one. The investigation commenced at 1:30 p.m. and concluded at 3:45 p.m. At
the time that the request for the additional witnesses was
made the transcript was approximately half completed. Thus,
we would conclude that had the Hearing officer granted the
organization representative a short recess to call the two
witnesses that they would have arrived at or about the time
that the hearing was concluding. There is no showing that
the request for additional witnesses was unreasonable, would
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have unduly delayed the completion of the investigation, or
that the Organization had reasonable advance notice that the
presence of the two witnesses was necessary.
Therefore, this Board would conclude on the basis of
this procedural defect alone, that is, the denial
of
a full
and fair hearing, that the Organization's claim should be
sustained and that the Claimant should be reinstated to service with all rights, wages, and benefits unimpaired.
Although we have decided this case on a procedural
basis, in our view it is appropriate to review the merits of
the case. The evidence of record establishes, as the
Organization properly argues, that responsible Carrier
representatives in supervisory capacities had full and
complete knowledge of the Claimant's situation both in terms
of his conviction for the possession of cocaine and his drug
related problems. In fact, the record would indicate that
the Claimant's drug problems were well-known throughout the
territory by both represented and supervisory personnel.
The record indicates that the.Claimantsometime-prior to his
being charged with the alleged Rules offenses had communicated facts concerning both his conviction and his drug
problems to responsible Carrier personnel, including
personnel in the Carrier's Employee Assistance Program. We
therefore would have found, had we reached the merits, that
the Claimant did not hide his problems including his conviction from the Carrier nor did he intend to elicit a letter
of recommendation under false pretenses from Mr. Mroczek.
In all of the above circumstances, this Board concludes
that the claim should be sustained.
Award: The claim, is sustained. The Carrier is directed
to reinstate the Claimant with all benefits, wages, and
rights intact and to cleanse his record of the alleged
offenses. The Board recognizes that the Claimant may have
entered a work release program and/or the Carrier's Employee
Assistance Program. If participation in either of these
programs resulted in or would have resulted in the
Claimant's missing work and/or receiving lesser benefits
and/or being withheld from service until he overcame the
stated drug related problems, then the monetary benefits of
this Award, i.e. back pay, should be adjusted accordingly.
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This Award was signed this 1st day of February 1985 in
Bryn Mawr, Pennsylvania.
Richard R. Rasher
Chairman and Neutral Member
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