BEFORE SPECIAL BOARD OF ADJUSTMENT NO. 986
BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYEES
and
NATIONAL RAILROAD PASSENGER CORPORATION
(AMTRAK) - NORTHEAST CORRIDOR
Case No. 231
STATEMENT OF CLAIM:
Appeal of the thirty-day suspension issued to Track Foreman D. Davenport for
alleged violation of Amtrak's Standard of Excellence, involving Safety and
Professional and Personal Conduct, as well as NORAC Operating Rules D and T.
(System File NEC-BMWE-SD-435 1D).
FINDINGS:
At the time of the events leading up to this claim, the Claimant was employed by
the Carrier as a Track Foreman, headquartered at Newark, Delaware.
By letter dated June 26, 2003, the Claimant was notified to appear for a formal
investigation and hearing on charges that the Claimant allegedly removed a watchman
assigned to the south of the TLM and then allegedly left the work site near M.P. 41
without authorization, in violation of Amtrak's Standards of Excellence, involving Safety
and Professional and Personal Conduct, as well as NORAC Operating Rules D and T.
After several postponements, the investigation was commenced on October 14, 2003, and
then recessed and completed on October 28, 2003. By letter dated November 12, 2003,
the Claimant was notified that he had been found guilty of the charges, and he was
assessed a thirty-day suspension. The Organization filed a claim on the Claimant's
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behalf, challenging the assessed discipline. The Carrier denied the claim.
The Carrier initially contends that, contrary to the Organization's assertions, there
has been no evidence demonstrating that the hearing officer was biased in his decision or
failed to consider the testimony of the Organization's witnesses. The hearing officer is
responsible for making credibility determinations, and he chose to believe the Carrier's
witnesses and the Claimant's own responses during the investigation that demonstrated
his guilt. The Carrier asserts that based on the Claimant's own testimony, there was no
basis on which to conclude that the hearing officer was biased in his decision or that his
credibility determinations should be overturned.
As for the Organization's argument that the Claimant removed the watchmen
because of unsafe conditions, the Carrier asserts that if, in fact, Claimant removed the
watchmen because of unsafe conditions, then Claimant was obligated to advise Assistant
Supervisor Griffin that the conditions were unsafe to provide watchmen. Moreover, the
Claimant would have advised Foreman Davis that he was pulling his men because of
unsafe conditions. The Carrier emphasizes that the record demonstrates that Claimant did
not so advise Griffin and Davis.
The Carrier maintains that the Claimant's assertions that he removed the watchmen
from the track because of unsafe conditions are not credible, especially in light of the fact
that Claimant did not advise Griffin or Davis of the alleged unsafe conditions or that he
was removing the watchmen for that reason. The Carrier points out that Claimant's
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testimony establishes that he was upset that Griffin asked him to transfer Track 1, which
was out of service in his name, to Davis. The Carrier maintains that is obvious from
Claimant's own testimony that he did not leave the watchmen as instructed by Assistant
Supervisor Griffin because he was upset that he had to transfer the out-of-service track to
Foreman Davis.
The Carrier then disputes the Organization's argument that Claimant's phone
records demonstrate that he attempted to notify Supervisor Griffin. These records
indicate that two calls were made to Griffin, and each was only one minute in duration.
In addition, the Claimant testified that he did not notify Griffin that he was taking his men
or that he was leaving; Griffin confirmed that he received no such notice, and he further
testified that he had not received any message from Claimant. The Carrier argues that the
Organization's assertions are merely a self-serving attempt to mitigate the Claimant's
guilt.
In connection with the Organization's contention that the assessed discipline was
disparate compared to discipline assessed to other employees, the Carrier emphasizes that
cases involving allegedly similar incidents cannot be treated as identical because there are
numerous factors taken into consideration when assessing discipline, including the
charges at issue, the employee's years of service, and the employee's prior discipline
record. The Organization failed to show any pattern of employees issued lesser discipline
under similar circumstances, including similarities in responsibility, guilt, and past record.
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The Carrier goes on to argue that contrary to the Claimant's assertions, the Carrier
properly advised the Claimant of the thirty-day suspension to be served at Carrier's
discretion, and the receipt proves that Claimant received this notice. As for the notice
that the suspension would commence on January 6, 2004, and end on February 3, 2004,
the Carrier emphasizes that the receipt shows that the notice was returned to the Carrier
because the Claimant failed to pick up his mail from his post office box.
The Carrier then acknowledges that the Claimant inadvertently was not provided
with a copy of the Carrier's decision regarding his suspension. The Carrier asserts,
however, that it timely notified the Claimant's union representative of the decision, and
the Claimant received a copy at the appeal hearing. Moreover, there is no evidence that
the Claimant's failure to receive a copy prevented him from properly preparing his
defense, or that this prejudiced or impaired Claimant's right to a fair hearing.
The Carrier argues that the overwhelming evidence demonstrates that Claimant
disregarded instructions from Assistant Supervisor Griffin to provide two men to serve as
watchmen, and that he left the job site without authorization. Claimant's actions
constitute a clear case of insubordination and certainly cannot be condoned. There can be
no dispute that Claimant's actions violated the Standards of Excellence governing safety
and Professional and Personal Conduct, as well as NORAC Operating Rules T and D.
The Carrier asserts that Claimant properly was found guilty. The Carrier points out that
numerous Board Awards have upheld the Carrier's right to dismiss an employee for
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failing to comply with instructions. The Claimant was assessed a thirty-day suspension,
however, because of his length of service and work record.
The Carrier ultimately contends that the instant claim should be denied in its
entirety.
The Organization initially contends that the suspension at issue was harsh, unusual,
and capricious. The Organization argues that the hearing officer's decision is based solely
on the testimony of the Carrier's witnesses. The hearing officer's decision does not even
acknowledge that any of the Organization's witnesses were even present. The
Organization therefore asserts that the Carrier violated Rule 68 of the Agreement by
failing to provide the Claimant with a fair and impartial investigation. The hearing
officer was biased in favor of the Carrier.
The Organization goes on to assert that on the date in question, the Claimant
received a call from an employee who told the Claimant that because of the fog and rainy
conditions, he could not see The Claimant also stated that he was responsible, as the
Gang Foreman, for removing employees from unsafe conditions. The Organization
maintains that under. the Safety Agreement, employees shall not work under unsafe
conditions. The record demonstrates that it was foggy on the date in question, and the
employees could not see as a result of the conditions. Moreover, the employees assigned
to the Claimant did not leave the job without permission. The Organization emphasizes
the Claimant's testimony that he did not disobey any order and was not insubordinate.
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The Organization further points to the Claimant's phone records, which show that he
made every effort to communicate with Supervisor Griffin. The Claimant farther stated
that he told Griffin that he had flagmen available, but that he was told that they no longer
were needed.
The Organization argues that this is a case of miscommunication between Griffin
and the Claimant. The Organization ultimately contends that the instant claim should be
sustained in its entirety.
The parties being unable to resolve their dispute, this matter came before this
Board.
This Board has reviewed the procedural arguments raised by the Organization, and
we find them to be without merit. We find that the Carrier provided the Claimant with a
fair hearing which met the requirements of Rule 68.
This Board has reviewed the evidence and testimony in this case, and we find that
the Carrier has failed to meet its burden of proof that the Claimant acted insubordinately
and in violation of the safety rules on June 19, 2003. The lengthy record does reveal poor
communication between the Claimant and his supervisor. However, given the weather
conditions and the amount of discretion that is allowed the Claimant as a track foreman,
this Board cannot find that the Claimant acted improperly when he made personnel
changes on his own. There is simply insufficient evidence in this record that the Claimant
was given a direct order that he disobeyed.
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The Claimant in this case has been employed by the Carrier since July of 1979.
Given that lengthy seniority and his excellent prior service record, there is simply nothing
in this file that supports the issuance of a thirty-day suspension to the Claimant. For all of
the above reasons, the claim must be sustained.
AWARD:
The claim is sustained. The thirty-day suspension shall be removed from the
Claimant's record and he shall be made whole
PETER R~M~ MARS
Neutr ember
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ORGANIZATION MEMBER CARRIER MEMBER
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Amtrak's Dissent- Special Board of Adinstment No. 986- Case 231
In the instant case, the majority determined there was insufficient evidence that
the Claimant was insubordinate and, chose to ignore the fact that he left the worksite
without authorization. To reach this conclusion, the majority obviously overlooked the
Claimant's admissions, in the record, that
· he was instructed by Supervisor Griffin to leave two men to serve as advance
Watchmen,
· he did not leave the men as instructed, and
· he did not advise Supervisor Griffin that he was leaving the job site.
While the majority obviously credited the Claimant's belated contention that he
removed the Watchmen and left the property based on "safety concerns", that credit is
misplaced. Even if it was foggy on the date at issue, it was incumbent upon the claimant
to notify his Supervisor of the "unsafe" condition, and seek instructions on how to
proceed. The fog did not grant the claimant the authority to ignore the instructions of his
Supervisor and arbitrarily make his own staffing decision to release the watchmen and
leave the job site.
Clearly, the majority missed the call in this case and for this reason, I dissent to the
decision.
R. F. Palmer
Carrier Member