Second Division Award No. 11514 (Fletcher)

"Notwithstanding that which obtained with respect to Claimant's reinstatement to an Assistant Signalman's position assigned under the terms of the BRS Agreement, it is our view that if he was deemed to be in violation of Carrier's Rules while employed as an Electrician under the IBEW Agreement the terms and provisions of that Agreement must control in the administration of discipline or dismissal for any employee working thereunder, unless, of course, an authorized IBEW representative agreed otherwise. Accordingly, when Claimant allegedly tested positive on the drug screen that was given on October 27, 1986, he was entitled to a hearing as provided in Rule 39 of the IBEW Agreement prior to any discipline being assessed. This was not done. Therefore, the Agreement was violated.

"The parties, in the penultimate sentence of Rule 39, have provided a remedy to be applied in instances where an employee has been `unjustly suspended or dismissed.' We will order that this remedy be applied here. Compensation for any wage losses shall be less outside earnings. Interest and other items demanded in the Statement of Claim, beyond those provided by Rule 39, are rejected."

Third Division Award No. 21071 (Blackwell)

"The Carrier does not dispute that the Claimant was demoted without charges having been preferred and before he had a hearing opportunity. However, the Carrier asserts that the demotion was a disciplinary measure governed by Rule 27 (Discipline and Investigation) and that, since the Claimant's lack of qualifications was not the reason for the demotion, the provisions of Rule 25(a) are not applicable.

"Rule 25(a) refers to `employees...who become disqualified for work in the higher ranks,' and provides that such employes may be demoted to lower ranks. The rule goes on to state that, as a condition precedent to demotion, charges must be preferred and a hearing opportunity afforded. In terms of who is covered by the rule, the definitional term in the rule is `employes... who become disqualified.' This term gives no indication that, because of differing reasons for demotions, some demoted employes are covered by the rule while others are not; instead, the term on its face clearly indicates that the rule encompasses any disqualification and demotion without regard to the reason therefor. Since the disciplinary purpose for the demotion in this case does not render Rule 25(a) inapplicable to the demotion, it must be concluded that the Carrier's action violated that rule and the Employees' position is supported by the record and the rule. Accordingly, the claim will be sustained to the extent that the Carrier shall pay the Claimant the difference between the rate of his lower rank of service and the rate of the foreman's position for the period beginning on the date of his demotion and ending on the date of his restoration to the rank of foreman."

First Division Award No. 21785 (Abernethy)

"Claimant was directed by the Carrier to attend an investigation at 10:00 A.M., July 20, 1955, for the purpose of investigating his alleged violation of Rules `O' and `G' while holding assignment on Train No. 1, Peoria to Galesburg, Illinois on July 13, 1955. When Claimant failed to appear at the investigation, the Carrier Officers did not proceed with planned investigation. Claimant was then dismissed from service on August 1, 1955:

"`. . .for violating the provisions of Rules "G" and "O", July 13, 1955, and subsequent failure to attend investigation July 20, 1955 in connection therewith after being properly notified to do so.'

"Thus no investigation was ever held relative to either basis for discharge prior to claimant's dismissal from service; no evidence was adduced in an investigation to support these charges against he claimant; and there is no record of investigation for the Board to review as to adequacy of evidence or as to fairness of impartiality of the investigation.

"Under these circumstances we cannot find that the investigation requirements of applicable rules on the property were complied with. This claim must, therefore, be sustained."

Second Division Award No. 6738 (Zumas)

"Carrier's position may be summarized as follows: (1) Claimant was not dismissed on October 25; Claimant was subsequently dismissed after the investigation and hearing of October 29; and (2) even if the October 25 notice was improper, the October 27 notice was valid in every respect, asserting that this Board has ruled that an initial improper investigation does not nullify the result of an identical second investigation that was proper. (Citing Second Division Award No. 5987).

"This Board finds that Claimant was not afforded an investigation in conformity with Rule 35. Despite Carrier's assertions to the contrary, Claimant was terminated as of October 22, 1971 as stated in the Supervisor's letter of October 25. This was in clear contravention of the rule.

"Carrier's reliance on Award No. 5987 is misplaced. The factual circumstance in Award 5987 is readily distinguishable and has no application in the instant dispute.

"Claim is sustained."

Third Division Award No. 18922 (Dugan)

"Carrier strongly argues that Claimant's alleged complaint was covered by specific rules of the agreement and thus it was not a complaint `other than covered by these rules', and the unjust treatment rule was therefore not applicable. This contention was rejected by this Board in Award No. 9854, involving the same Carrier as in this dispute, then the Board clearly stated:

"`The phrase "other than covered by these rules" causes us some confusion because of its ambiguity. Carrier contends that, since Claimant Carpenter's disqualification for the position in question was handled in accordance with the provisions of Rule 8(a), this precludes any further consideration under Rule 22(g). Referee Lynch accepted this Rule 8(a) as the "specific" rule and held that it should be applied in preference to the more "general" Rule 22(g), (Award 8422). But we agree with Referee Bernstein in that the two rules are not in conflict, but actually compliment each other (Award 9415). The Carrier may disqualify an employe under Rule 8(a), but if that disqualification was carried out in such a manner as to leave the employe with the feeling that he had been treated unfairly, regardless of whether he can prove unfairness, he has a right to ask for an investigation. Rule 22(g) affords some protection to all employes who think they have been mistreated.'

"Finding said Award No. 9854 controlling in the determination of this dispute, we must sustain the claim."

Third Division Award No. 18857 (Cull)

"There are conflicts of evidence as to what happened on July 23, 1970. Claimant alleges he left work on that day with the approval of his Supervisor and when he returned to work on July 24, 1970 his Supervisor told him he was through. The Carrier alleges he left work on July 23, 1970 without permission and did not report on July 24, 1970. It is unnecessary to resolve these conflicts as there are sufficient undisputed facts which will decide the controversy. Thus it is undisputed that Claimant called the Carrier's General Superintendent by telephone at his home on July 24 or 25 and the General Superintendent `***told him to contact his local committee.' It is undisputed that on July 29, 1970 a scant 6 days after the July 23rd incident Claimant addressed a letter to the General Superintendent requesting a hearing because he felt he `***was unjustly treated.' On July 31, 1970 General Superintendent responded referring him to the local committee as he had done in his telephonic conversation with Claimant. Whatever doubt which might have existed as to whether he resigned was resolved by his phone conversation with the General Superintendent and the exchange of letters noted above.

"On July 29 it was not too late to grant the hearing the request for which was proper under Rule 19(f). Moreover it was beyond the Carrier's competence to decide that Claimant must take the matter up with the local committee after he had determined to process his claim through the Organizations General Chairman and constitutes another denial of a hearing. The telephone call and the letter of July 29 are not the acts of an employee who had resigned.

"It is unnecessary to consider the allegations that Claimant aws (sic) in the past an undependable employe. Whatever his conduct prior to July 23, 1970 it was not the proximate cause for his separation and the record reveals Carrier had condoned the past conduct.

"Carrier's offer in August 1971 to rehire Claimant does not toll is (sic) back pay liability as it was a conditional offer which provided for no back pay and the discontinuance of his claim before this Board. The channels of communication between parties to Agreements and this Board must be kept open and unclogged otherwise this Board will be unable to discharge its duties under the Act.

"Having found that Claimant was denied a hearing under Rule 19(a) his separation from service without such hearing was violative of the Agreement. Accordingly Claimant is entitled to an immediate offer of reinstatement to his former position without prejudice to his seniority or other rights and to be made whole for any loss of wages suffered. The claim for interest is denied as Rule 19(c) of the Agreement dealing with reinstatement makes no provision therefore."

Third Division Award No. 14803 (Lynch)

"It is Carrier's position that based on reports of poor service rendered in its dining cars by Waiter Walter L. Terry, who was assigned to a twin unit dining car on the Twentieth Century Limited, it concluded Waiter Terry `lacked fitness and ability on the twin-unit dining cars and also lacked fitness and ability to work on smaller cars where but a single waiter was assigned.'

"On June 2, 1965 Carrier advised the Claimant: `You presently lack fitness and ability for work as dining car waiter. Accordingly, you are hereby disqualified for service in that classification.'

"Carrier advised the Organization Claimant `has been disqualified under Rule 4(a).'

"Carrier here advised and charged the Claimant:

"`You presently lack fitness and ability to work as a Dining Car Waiter. Accordingly you are hereby disqualified for service in that classification.'

"The effect of Carrier's action was to suspend him from further service as a Dining Car Waiter.

"Rule 6 states that employes shall not be . . . suspended . . . without a fair and impartial trial. Claimant was not accorded a trial.

"Carrier's action was a violation of Article 6 of the Agreement.

"We will sustain this claim for his net wage loss from June 2, 1965 to October 14, 1965 when he voluntarily resigned to apply for an annuity."

Second Division Award No. 6877 (Weston)

"Claimant, a machinist in Carrier's employ since March 23, 1973, was notified by Superintendent Hagen's letter of November 26, 1973, that he was `hereby removed from the service of the Burlington Northern, Inc., account falsification of your work application.'

"He was terminated without hearing but Carrier contends that under Rule 36, a hearing is not required for an employe who has given false information on his work application, unless he requests one and that Claimant did not comply with that condition. While Rule 35 stipulates that an employe in service more than sixty days will not be disciplined or dismissed until after a fair and impartial investigation has been held, Rule 36 provides that an employment application will be considered approved if not disapproved within sixty days from commencement of service, `unless it is found that false information has been given, in which event applicant will not be dismissed without an investigation, if he so desires.'

* * *

"On the other hand, Carrier should certainly accord any claimant who has been in its employ as long as Claimant was, a hearing before terminating his employment, if there is any reasonable indication that he desires a hearing. This principle is sound, not only because it conforms with elementary principles of fair play and avoided an inference that an innocent employe is being removed arbitrarily (see Third Division Award 4391), but also because it is consistent with the requirements of Rule 36.

* * *

"In the light of these considerations, Carrier's decision to remove Claimant from service will be set aside and it will be directed to offer him immediate reinstatement to the position he occupied as of the time of his removal with seniority rights unimpaired."

Second Division Award No. 9362 (Goldstein)

"Any fair-minded reading of the record evidence in the instant case would show that a central aspect constituting both the impetus and motive in the Carrier's course of action were the charges by each Claimant's immediate foreman that the Claimants were being inefficient, unproductive, unskilled and unable to perform the duties of a Carman-Mechanic during the initial three months of 1980. These charges, and Management's response, constituted in effect an imposition of discipline and not a demotion for lack of skill or consistent poor work performance. Demotion under these circumstances is an abuse of managerial discretion and a violation of the relevant rules of the Controlling Agreement especially Rule 20. Therefore, on the merits, the Board sustains the instant claim."

Second Division Award No. 10636 (McAlpin)

"Due process is a critical element in the disciplinary process. Many Awards have issued stating that employees should not be disciplined without a hearing. The language in the Rule is clear, notwithstanding the Carrier's contention that the issues of this case have been litigated and having once been litigated, are precluded from being relitigated. The Board finds the original Public Law Board had jurisdiction to interpret their Award, but they certainly did not have any jurisdiction to rule in this case. That is properly before this Board. What is lost in all the arguments regarding jurisdiction is the fact that this Board was denied the opportunity to properly review the merits of this case because no investigation was held. We believe the Carrier acted in good faith when it followed Referee Van Wart's Award and subsequent interpretation. However, we cannot assume the Claimant to be guilty as no evidence was presented to allow us to make a determination. Upon careful review of all the evidence presented, the Board finds that this Claimant was denied due process considerations as called for in Rule 34 which would allow this Board to make a reasoned judgement as to the merits of this case, and we will order the Claim sustained with the exception of 2(d), the request for 6% interest on all monies due the Claimant."

Third Division Award No. 30249 (Wesman)

"The language of Rule 51 is clear and unambiguous. Under its provisions, Carrier was obliged to hold a 'fair and impartial hearing' prior to assessing the discipline in question. It is undisputed on this record that Carrier failed to do so.

"Claim sustained."

Third Division Award No. 31794 (Fletcher)

"The Claimant was awarded an Assistant Train Director position in "K" Tower in early 1992. After being assigned to the position for 56 days, the Carrier removed him from the job on the basis he was not qualified. The Organization filed the claim under review here contending that the Agreement allowed the Carrier 45 days within which it could disqualify the Claimant without an Investigation. In situations where the qualification period had not been extended by agreement between the Local Chairman and a proper Carrier official, if after 45 days, the Carrier sought to remove the Claimant from the job, it could do so only after placing charges and holding an Investigation to determine his qualifications.

"With this the Board agrees.

"Rule 2-A-5, as amended to cover Assistant Train Director positions in "K" Tower, gives the Carrier 45 days within which to judge the qualifications of new occupants. The Carrier must make a determination on an employee's qualifications during that time, or if not sure of the employee's qualifications, it must secure an extension from the Organization. The Carrier is not privileged to unilaterally extend the qualification period beyond 45 days without agreement with the Local Chairman. Such a result would make the language of the Rule superfluous.

"The Carrier argued that the Claimant was not qualified, that he knew that he was not qualified, and that the Organization never argued that he was qualified; therefore, it makes no difference that it waited until the 56th day to effect his disqualification. With this logic the Board is unable to agree. Why then would the Carrier agree to have the qualification period of Rule 2-A-5 expanded from 30 days to 45 days for "K" Tower, if the existing qualifications period in the Rule permitted it to have any length period it found convenient or necessary? The answer is simple. The Carrier wanted a longer period and it was aware that in order to secure a longer period it needed an exception to the Rule, ie., agreement with the Local Chairman.

"Now it is trying to persuade the Board that even after securing an expansion of the 30 day qualifying period to 45 days, it can treat the 45 days as 56 days, if it chooses, and it may do so without agreement of the Local Chairman, notwithstanding the specific language of the Rule.

"The Board is unwilling to accept this notion as sound. It would negate an essential element of Rule 2-A-5. Carried to its extreme, the Carrier could remove an Assistant Train Director from "K" Tower after a year, or two years, on the basis that he failed to qualify, without charges and an Investigation. Rule 2-A-5, as amended to cover "K" Tower, simply cannot be administered in this fashion. If an employee is not disqualified within the time period provided in the Rule, the only way he may properly be removed from the job is after charges are filed and an Investigation is held, wherein the charges are supported by adequate evidence."