PUBLIC LAW BOARD NO. 6254
Award No.2
Case No.2
Carrier File No. 62-99-0014
Organization File No. GO 393-208-99A
UNITED TRANSPORTATION UNION
Parties to Dispute:
-and-
BURLINGTON NORTHERN SANTA FE RAILWAY
Statement of Claim:
Claim is made on behalf of Conductor H. R. Beck, III,
Sweetwater, Texas, Gulf Division, BNSF Railway Company, for
removal of Level S Suspension of 10 days with 1 year probation
and Level S Deferred Suspension of 20 days with 6 months
probation from his personal record, with payment for time lost
attending investigation, time lost from 10 days suspension and all
notations removed from his personal record as a result of being
improperly disciplined considering there was not an investigation
conducted on Mr. Beck September 20, 1998.
INTRODUCTION
This Board is duly constituted by agreement of the parties dated May 21, 1999, as
amended, and as further provided in Section 3, Second of the Railway Labor Act ("Act"), 45
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Award No. 2
Case No. 2
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Organization File No. GO 393-208-99A
U.S.C. Section 153, Second. The Board, after hearing and upon review of the entire record,
finds that the parties involved in this dispute are a Carrier and employee representative
("Organization") within the meaning ofthe Act, as amended.
FINDINGS
On July 21,1998, the claimant, conductor H. R Beck, was assigned to train PLACNW03-18A. At approximately 7:00 a.m., the claimant departed Sweetwater, Texas, and
proceeded toward milepost 456.4. On this particular morning, foreman T. R Ruiz and his
crew were preparing to perform their assignments in the vicinity of milepost 456.4. The
Carrier had placed a ten m.p.h. slow order into effect at this time between mileposts 456.4 and
456.3. Foreman Ruiz observed the claimant's train proceed through the limits of the slow
order, and estimated that it was traveling in excess of the maximum authorized speed. As a
result of his observation, foreman Ruiz contacted the claimant's supervisor, road foreman of
engines J. T. Campbell, and informed him of the claimant's alleged violation. Subsequently,
road foreman Campbell obtained information from the event recorder on the engine operated
by the claimant. The information retrieved from the event recorder indicated that the
claimant's train operated at a speed of25 m.p.h. when it entered the limits of the slow order.
On August 4, 1998, the Carrier issued the claimant an investigation notice which
instructed him to attend a formal investigation on August 20, 1998, in order to develop the
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facts and determine his responsibility, if any, concerning an allegation that he exceeded
temporary speed restrictions between Sweetwater, Texas and Tecific, Texas, on July 21, 1998.
However, the claimant was on vacation during this period of time and did not receive the
investigation notice until August 26, 1998. Nonetheless, the Carrier commenced the
investigation as scheduled on August 20, 1998, despite the fact that the claimant and his
representative were absent. The investigation was subsequently reconvened on September 16,
1998, at which time the claimant testified and was afforded the opportunity to cross-examine
the Carrier witnesses who had testified at the investigation conducted on August 20, 1998.
Upon the conclusion of the formal investigation on September 16, 1998, the Carrier
issued the claimant a ten-day level S suspension and a twenty-day level S deferred suspension
for violating Rules 1.47,5.4.2,6.22 and 15.1 of the General Code of Operating Rules (GCOR).
Additionally, the Carrier placed the claimant on probation for a period of one year for his tenday level S suspension and a period of six months for his twenty-day level S deferred
suspension. For the following reasons, the Board cannot sustain the discipline assessed the
claimant.
Article 62(c)(I) of the Conductors and Trainmen's Agreement provides as follows:
Prior to the investigation the employe(s) involved will be notified
in writing, with copy to his (their) duly authorized local chairman
of the charges, which will be confined to the case to be
investigated, sufficiently in advance of the time set for
investigation to allow reasonable opportunity to secure the
presence of necessary representative and witnesses. Failure of
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Organization File No. GO 393-208-99A
local chairman to receive notice will not be considered a
procedural violation of this rule. In fixing hours at which
investigation will be held, due consideration of the need for rest
by employes will be given by the Company's officers.
Article 62(d) and (e) of the Conductors and Trainmen's Agreement contains the
following provisions:
(d)
Investigations will be held promptly, but in any event not
later than thirty (30) days from the date of occurrence of
the incident to be investigated, except when the employe,
his representative, or a material witness is unable to attend
an investigation because of sickness or injury, the
investigation may be deferred until such time as the
employe, his representative or material witness is able to
attend the investigation.
(e)(1) Unless otherwise agreed to, all employes involved and
notified shall be present at the investigation.
(2) The employees) charged will remain throughout the investigation,
as well as all witnesses after giving their testimony unless the latter are
excused by mutual consent.
The claimant did not receive notification of the formal investigation until after the date
upon which the Carrier commenced the investigation. Additionally, the record indicates that
the Carrier had knowledge that the claimant was on vacation during the time period preceding
August 20, 1998, the date on which the investigation commenced. Therefore, the Board finds
that the Carrier violated Article 62(c)(1) of the Conductors and Trainmen's Agreement because
the claimant was not provided with notice of the investigation notice prior to August 20, 1998.
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Article 62(d) of the Conductors and Trainmen's Agreement provides that an
investigation shall be conducted within thirty days from the date of the incident. Article
62(e)(I) and (2) require all employees involved and notified shall be present at the
investigation, and the employee charged will remain throughout the investigation. The record
established that the portion of the investigation attended by the claimant was not conducted
until September 16, 1998. Additionally, the Organization protested the fact that the
investigation attended by the claimant was not conducted until September 16, 1998, and the
Organization did not consent to conduct the investigation on September 16. This date is more
than thirty days from July 21, 1998, the date of the incident at issue.
The evidence of record proved that the Carrier did not postpone the initial investigation
at any time during the thirty-day period following the date of the incident, and even elicited the
direct testimony of witnesses in the complete absence of the claimant and his representative
who Were without notice of the initial investigation. (August 20, 1998 Investigation, at 2).
This Board finds, without qualification or a scintilla of doubt, that the Carrier deprived the
claimant of his right to be present and to remain throughout the investigation. Knowing the
claimant was on vacation and without proof of any kind that he had notification of the
investigation, and in the absence as well of his duly designated representative, the Carrier
officials proceeded with the investigation anyway.
Based upon the foregoing facts and circumstances, the Board finds that the Carrier
violated Article 62(d), (e)(I) and (e)(2) of the Conductors and Trainmen's Agreement. The
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Board fmds that the nature of the investigation conducted on August 20, 1998 and September
16, ·1998, substantially deprived the claimant of fundamental due process, and proceeded in
derogation of the claimant's contractual right to a fair and impartial investigation. For each of
the aforementioned reasons, the claim must be sustained.
AWARD
The claim is sustained. The Carrier is to comply with this Award
within thirty (30) days from the date of issuance.
Pete
Gene Shire, Carrier Member
.f·
This Award issued thesfi! day
Of~
,2000.
6
t: Patsouras, Employee Member