Form 1
NATIONAL RAILROAD ADJUSTMENT BOARD
FIRST DIVISION
Award No. 27070
Docket No. 46695
10-1-~AB-0000I-070140
07-1-140
The First Division consisted of the regular members and in addition Referee
Lisa Salkovitz Kohn when award was rendered.
(Brotherhood of Locomotive Engineers and Trainmen
PARTIES TO DISPUTE: (
(BNSF Railway Company
STATEMENT OF CLAIM:
"It is hereby requested that Engineer D. W. Love's discipline be reversed
with seniority unimpaired, requesting pay for all time lost, including the
day(s) for investigation, without deductions for outside earnings, with
restoration of run benefits and that the notation of dismissal be removed
from his personal record, resulting from investigation held on September
28,2004."
FINDINGS:
The First Division of the Adjustment Board, upon the whole record and all the
evidence, finds that:
The carrier or carriers and the employee or employees involved in this dispute
are respectively carrier and employee within the meaning of the Railway Labor Act,
as approved June 21, 1934.
This Division of the Adjustment Board has jurisdiction over the dispute
involved herein.
Parties to said dispute were given due notice of hearing thereon.
Form 1
Page 2
Award No. 27070
Docket No. 46695
ID-I-NRAB-OOOOI-070140
07-1-140
The Carrier hired the Claimant in 1994 and promoted him to Engineer in 2003.
On August 25, 2004, the Claimant was called for Train C-NAMMEA2-94A for an onduty time of 10:00 P. M. The Claimant upon receiving his call laid off fatigued.
On September 18, 2004, the Claimant was directed to attend an Investigation
''for the purpose of ascertaining the facts and determining [his] responsibility, if any,
in connection with [his] alleged faDure to comply with Powder River Division General
Notice No.6, specifically, the paragraphs regarding Laying otT on Call, by laying off
on call as an Engineer for the C-NAMMEA2-94A, on duty at 2200 hours on August
25, 2004." Following the Investigation held on September 28, 2004, the Carrier found
the Claimant guDty of the offense with which he was charged, and dismissed him
effective October 7, 2004, for violating GCOR Rules 1.3.3 and 1.13 and Powder River
Division General Notice No.6 dated April 29, 2004 - BNSF Lay-Off Policy. The
parties informed the Board that on December 22, 2005, the Claimant was reinstated to
the Carrier's service ''with managerial leniency," so the Claimant's discipline was
effectively an actual suspension from September 28, 2004 to December 22, 2005. This
is the last of four disciplinary actions against the Claimant that are now before the
Board, the Claimant having been assessed a 10 - day record suspension, a 20 - day
record suspension, and a 30 - day record suspension, all of which were upheld in First
Division Awards 27067, 27068, and 27069.
The Carrier asserts that the Claimant was afforded a fair and impartial
Hearing and that there is substantial evidence in the record to support the rmding of
guilt and the penalty imposed. The Organization contends that the Carrier failed to
prove that the Claimant violated the Rules for which he was disciplined, because the
Carrier operated the Claimant's pool out of proper rotation and called him for duty
roughly ten to 16 hours sooner than he had reasonably anticipated. He wisely laid off
because he felt unsafe due to fatigue, and should not have been disciplined, the
Organization asserts.
Powder River Division General Notice No. 6 provides that once an employee
knows that he is unable to work, he must call in and not remain subject to call. While
management might agree in some situations that an emergency or extenuating
circumstances might excuse a layoff on call due to fatigue, the Claimant's recent
record in this regard mitigated against that approach. The Organization failed to
prove that the Claimant's pool is a "blueprint pool," with turns always kept and called
in numeric order. In addition, the Claimant had been assessed three recent
Award No. 27070
Docket No. 46695
16-1-NRAB-OOOOl-670140
07·1·140
Form 1
Page 3
suspensions for laying off on call, significant evidence that he lacked the commitment
expected under General Notice No.6 to layoff in advance of a call when layoff
becomes necessary. Under these circumstances, the Carrier reasonably determined
that the Claimant was culpable for violating General Notice No.6. The Organization
failed to demonstrate that the Carrier's approach to layoff's on call is arbitrary or
unreasonable in general, or as applied to the Claimant here.
However, the Organization is correct that the discipline imposed here, even
after the reinstatement in December 2005, was too harsh. Under the Carrier's Policy
for Employee Performance Accountability (pEPA) employees are not subject to
dismissal for non-serious Rule violations unless an employee has five events within a
12-month period. The Claimant was dismissed with only four events within the
preceding 12 months. Under the circumstances including his injuries in June 2004, the
Board deems a 30 - day record suspension to be the appropriate discipline for the
Claimant's fourth layoff on call within a three month period. In calculating the
remedy, the Board finds persuasive the decision of Referee Benn in Interpretation No.
1 to First Division Award 26368.
AWARD
Claim sustained in accordance with the Findings.
ORDER
This Board, after consideration of the dispute identified above, hereby orders
that an award favorable to the Claimant(s) be made. The Carrier is ordered to make
the Award effective on or before 30 days following the postmark date the Award is
transmitted to the parties.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of First Division
Dated at Chicago, Illinois, this 29th day of March 2010.