Description:
PUBLIC LAW BOARD NO. 6721
In the Matter of the Arbitration Between:
BURLINGTON NORTHERN SANTA FE
RAILWAY COMPANY
and
UNITED TRANSPORTATION UNION
NMB Case No. 29
Claim of C. Gore
Dismissal: Failure to Protect Shove, Line Switch
STATEMENT OF CLAIM: claim on behalf of Yardmen/trainmen Gore for
reinstatement to service with seniority and all rights
unimpaired with pay for all time lost including payment of Health
and Welfare Benefits beginning August 9, 2004 and continuing until
returned to service and no deductions for outside earnings and the
removal of his alleged violations on account Carrier did not meet
their burden of proof.
FINDINGS OF THE BOARD: The Board finds that the Carrier and
Organization are, respectively, Carrier and Organization, and
Claimant an employee within the meaning of the Railway Labor Act,
as amended, that this Board is duly constituted and has
jurisdiction over the parties, claim and subject matter herein, and
that the parties were given due notice of the hearing which was
held on March 10, 2006, at Washington, D.C. Claimant was present
at the hearing. The Board makes the following additional findings:
The Carrier and Organization are parties to a collective
bargaining agreement which has been 1n effect at all times relevant
to this dispute, covering the Carrier's employees in the Trainman
and Yardman crafts.
Claimant was first employed by the Carrier in March of 2004.
He had no prior railroad industry experience. Claimant successfully
passed his initial training and qualified as a ground man. He
passed his probation period. He then entered the RCO training
program in Barstow, CA. It appears that he was directed to do so
by the Carrier. Claimant completed the three week course and
received some additional training, but continued to voice concerns
that he was not ready to perform the duties for which he was being
trained.
On August 9, 2004, during. Claimant's Certification Ride at the
Barstow Yard under the observation of Management officials, he was
unable to place the battery into the OCU box, failed to properly
link up to the RCO box, failed to property observe the alignment of
a switch and failed to protect a shove. Management witnesses
testified that Claimant was unable to perform these basic duties,
even after being coached by the crew. Mr. French, the RCO
qualifier, stopped the movement which, had it proceeded, could have
caused a collision. Carrier witnesses testified that, if Claimant
had not been stopped, damage or injury might have resulted. The
Carrier then withheld Claimant from service. Claimant denied that
he had misaligned a switch, pointing out that he did not align any PLB 672 i
Case No. 29, Claimant of C. Gore
Page 2
switches, asserted that he had a. clear view of the end of the cut
from his location and stated that he stopped the move in time once.
he realized he was on the wrong track.
The Carrier convened an investigation September 7, 2004 to
determine whether Claimant violated General Code of Operating Rules
1.1, (April 2, 2000 Edition) Safety, 1.1.1, t-1alntain the Safe
Course, 6.5, Handling Cars Ahead of the Engine, And 8.2, Position
of Switches, at which the evidence described herein was adduced.
During the hearing, the tape recorder being used to create the
record of the proceeding malfunctioned, resulting in the loss of
approximately 45 minutes of testimony. The Parties did their best
to recreate the missing testimony. The Organization protested the
malfunction.
Claimant had previously been issued a record 10 day suspension
for failure to appear in the Terminal Superintendent's office as
instructed, a Level S (serious) violation. He did not receive
Alternative Handling. The Carrier's Policy for Employee
Performance Accountability (PEPA) "Dismissible Violations" States,
in part, that two serious rule violations within 36 months may
result in an employee's dismissal.
Claimant was found guilty of the charges brought against him.
He was dismissed from service on October 4, 2004.
The instant claim for Claimants reinstatement and payment for
all time lost, was presented in due course and progressed on the
property .in the usual manner, but without resolution; and it
submitted to this Board for disposition.
POSITIONS OF THE PARTIES: The Carrier argues that the record
contains substantial credible evidence that Claimant violated at
least three serious rules during his Certification Ride and thus
failed to qualify as an RCO. It asserts that Claimant's
demonstrated poor performance constituted a safety hazard to
himself and others and clearly indicates his unsuitability to
perform the type of work assigned.
The Carrier argues that Claimant had been placed with crew
members who possessed excellent skill~:; and training ability and
that he had been provided with additional hours to train on the RCO
equipment, as well as coaching during the certification test. The
Carrier asserts that the standard training period is three weeks
and that following a request by the RCO Review Committee, Claimant
had been given an additional two weeks to become familiar with the PLB 6721
Case No. 29, Claim of r Gore Barstow Yard. It contends that, notwithstanding this assistance
he failed the most basic parts of his certification test.
The Carrier points out that Claimant's first task required him
to place the battery into the OCU box and t.hen to link up. It
maintains that the evidence establishes that Claimant was unable to
place the battery into the OCU and, after receiving assistance from
the crew, was uncertain what to do to complete the link up. The
Carrier also argues that l in performing the work assigned as part
of the test, Claimant failed to properly align the switch and
failed to protect the shove. Again it asserts Claimant failed to
demonstrate competence lo perform these basic duties.
The Carrier argues that the evidence proves the rule
violations and urges that the dismissal be upheld and the claim be
denied.
The orqanization articles that the Carrier- failed to prove the
charges against Claimant and argues further that it failed to
provide the Claimant with a fair and impartial investigation,
evident when it issued the harsh and excessive discipline of
dismissal to the Claimant.
The Organization argues that at the time he was disciplined,
Claimant was still a student, operating under the oversight of an
instructor. It points out that he did not cause harm to himself,
other BNSF employees or BNSF equipment. It asserts that the
assignment which led to his dismissal was a training test to
determine whether Claimant was ready to be licensed. UTU maintains
that the total of 13 weeks of training which Claimant received were
dangerously inadequate to prepare him, as a trainee with no prior
railroad experience, for real world situations.
UTU further argues that the ability to operate a remote
control unit cannot be: a condition of employment. It asserts that
there is no provision that states the Carrier may terminate an
employee's ground seniority simply because the employee cannot
operate remote control unit.
The Organization urges that the claim be sustained, Claimants
dismissal rescinded and Claimant returned to service with all
rights unimpaired, including seniority and health and welfare
benefits, and without deduction of outside earnings, starting
August 9, 2004 and until returned to service
DISCUSSION AND ANALYSIS: It was the burden of t:he Carrier to adduce
substantial credible evidence on the records a whole of
Claimant's guilt and to establish that the penalty of dismissal was PLB 6721
the appropriate response. For the reasons which follow, the Board
is persuaded that The Carrier established Claimant’s violation of
certain rules, but that the penalty of dismissal was harsh,
excessive and inappropriate.
The Carrier has an obligation to ensure that employees are not
placed in assignments which they cannot safely perform and has a
further obligation to provide employees with training sufficient to
perform assigned duties. It also has the right to make
determinations as to qualifications and suitability to perform
particular types of work, subject to review through the claims
process.
The evidence persuades the Board that the Carrier property
deemed Claimant to have failed his RCO qualifying test. He
demonstrated lack of skill and judgment necessary to perform RCO
duties. Claimant acknowledged as much by stating in advance of the
test that he was not comfortable performing the duties assigned and
asserting that he needed additional training.
The Board is not persuaded that the Carrier provided Claimant
with sufficient training. The assertion that he received two
additional weeks of training beyond the basic three weeks is not
supported by the record. He received, at most, several extra days
of RCO training. His training was not preceded by any railroad
industry experience. Be appears to have successfully completed the
pre-RCO training and to have passed his probationary period. Under
such circumstances, it is not appropriate to place all of the
consequences of the unsuccessful RCO training program on Claimant.
Moreover, it appears that Claimant was qualified as a ground
man and was not obligate, under the terms of the governing
Agreement, to become RCO-qualified. Neither is the Board persuaded
that Claimant's performance was such that it warranted withholding
him from service. Whether there were jobs for which he was
qualified and for which he would have been eligible during the
period is not apparent from the record. That question, and its
possible economic consequences are remanded to the Parties for
review and resolution.
Claimant shall be returned to employment, a training program
appropriate to his status shall be developed and, upon Claimant's
completion of that program, his qualifications and suitability for
employment in the Yardman, or such other craft in which employment
is available, shall be evaluated and appropriate determinations
made.
Ultimately the Carrier has the right to make qualification and
suitability determinations, but in the case of employees who have
passed their probationary, that right is subject to review through
the claims procedure. Violations must prove by substantial
evidence and the penalty must be established to be appropriate to
the offense.
The Board notes the faulty tape recording equipment and
reminds the Carrier of its responsibility to provide a complete
record of the hearing and to provide equipment necessary to obtain
that record. Clearly, the Carrier failed its responsibility,
potentially jeopardizing the fair hearing to which all claimants
are entitled. That having been said, the Organization did not
identify any evidence or argument favorable to Claimant which was
lost as a result of the faulty tape recorder. The Board is not
persuaded that failure of the tape and the recreated testimony,
delay and inconvenience are sufficient to overturn the discipline.
Under the Circumstances, the Board is not convinced that: the
Carrier properly dismissed Claimant from service. Instead, he
should be reinstated to service and afforded re-training as well
as any additional training warranted. If RCO continues not to be
required, he should be allowed to work in non-RCO jobs for which he
is qualified. If RCO qualification is required, Claimant should
receive a full assessment as to Ills ability and suitability for the
required jobs for which he was being trained. PLB 6721 AWARD: The claim is sustained in the part and denied in the part
Claimant’s performance in the RCO certification test was properly
deemed unsatisfactory In his pronounce during the test, he
violated rules included in the list with which he was charged.
Claimant was not properly withheld from service as a result of his
performance during the RCO certification test. His status during
the period after he was withheld from service is remanded to the
Parties for determination and entry of appropriate remedy.
Claimant shall be returned to duty in the same status he was in at
the outset of his RCO Training. Whether he can be required to
undergo RCO training as a condition of his employment is likewise
remanded to the Parties. In light of the passage of time, Claimant
shall receive refresher training and, lf RCO qualification is
required, a complete new RCO training course, including additional
training beyond the basic course, if needed. Claimant shall be
returned to employment, a training program appropriate to his
status shall be developed and, upon Claimant's completion of that
program and testing, his qualifications and suitability for
employment in the Yardman Craft, or such other craft for which he
might be eligible, shall be evaluated and appropriate
determinations made. The Carrier shall implement the Award within
30 calendar days of its execution.
PUBLIC LAW BOARD NO. 6721
In the Matter of the Arbitration Between:
BURLINGTON NORTHERN SANTA FE
RAILWAY COMPANY
and
UNITED TRANSPORTATION UNION
NMB Case No. 29
Claim of C. Gore
Dismissal: Failure to
Protect Shove, Line Switch INTERPRETATIOM: An Award previously issued by the Board sustained
in part and denied in part a Claim protesting Claimant's 2004
dismissal from service [or unsatisfactory performance in the RCO
certification test, in violation of multiple rules cited in the
Opinion.
The Board found Claimant guilty of unsatisfactory and unsafe.
performance of RCO duties; however, it found his training not
to be adequate. Moreover, Claimant had established ground
seniority, and the Board found that he had been improperly withheld
from ,such service as a result of his performance during the RCO
certification test and should have been returned to that status.
rather than being dismissed. The penalty of dismissal was
arbitrary and excessive, for reasons stated in the Opinion,
including inadequate training,
Claimant's status during the period after he was dismissed was
remanded to the Parties for determination and appropriate remedy.
On August 17, 2006, the Parties requested an Interpretation of the
Board's previous Award and issuance of a more specific remedy. The
Award i. interpreted to read as follows,
Claimant dismissal shall be rescinded and he shall be
returned to employment in the same statue he was in at the outset
of his RCO training, that is, as all employee holding ground
seniority and working in that capacity. In light of the passage of
time, Claimant shall be fully and completely retrained and
re-qualified as a ground employee, as if he were a new employee.
before being returned to work at a ground employee,
Upon his re-qualification, Claimant may exercise his full
ground seniority, including seniority coverage the period of his
dismissal and shall be allowed to work when and as the exercise of
his seniority and qualification allow. In the event Claimant does
not qualify, he shall be treated by the Carrier in the same manner
as any other employe who fails to qualify.
Claimant shall be required to undergo RCO training only if all
other similarly - situated employee are required to do so or if he
applies and is accepted for such training. If RCO qualification is
required of him or if he is otherwise enrolled in the training
Claimant shall be given a complete new RCO training course,
including additional training if needed, beyond the basic course.
Upon Claimant's completion of all required training and
testing, his qualifications and suitability for employment in the
Yardman Craft, or such other craft fox- which he might be eligible,
shall be evaluated and appropriate determinations made. In
assessing Claimant, the Carrier shall not be required to relax the
safety and competency requirements applicable to other employee.
If Claimant becomes RCO-qualified, he shall be allowed to
exercise seniority in such job. If he does not become RCO qualified,
Claimant shall continue in ground service as his
seniority and qualifications allow.
The responsibility for Claimant's unsatisfactory and unsafe
performance during his RCO qualification is shared between the
Carrier and him. Elements of Claimant's employment and earnings
during the period he was dismissed, are speculative. In Full
satisfaction of the Carrier’s financial obligation to Claimant
during the period he was dismissed, and without precedent or
prejudice, the Carrier shall compensate Claimant for 180 calendar
days at the guaranteed extra board rate, less standard deductions.
Claimant’s entitlement to that compensation is not contingent on
his re-qualification for service.
The Carrier shall implement the Award, as interpreted, within
30 calendar days of its execution.
Executed this 29th day of September, 1996.
M David Vaughn, Neutral, member
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