AWARDS 80 - USELESS FOR ORGANIZATION TO PROGRESS DISCIPLINE CLAIM TO BOARD WHERE CARRIER HAS SUSTAINED THE BURDEN OF PROOF OR ACCUSED ADMITS RESPONSIBILITY UNLESS THERE ARE SUBSTANTIAL PROCEDURAL ERRORS

Fourth Division Award No. 3278 (Lieberman)

"Since the Carrier's conclusion was supported by substantial evidence we cannot disturb it; the penalty assessed was neither harsh nor capricious in view of the seriousness of dishonesty, particularly by a supervisor."

Fourth Division Award No. 3348 (Dolnick)

"A careful reading of the investigation transcript shows, without any serious contradiction, that the Claimant failed to completely carry out the order of the Superintendent. He did not do so intentionally. It is not clear exactly why the cars intended for Train No. 731 were not switched to that train. The fact is that Train No. 731 was not called for 4:00 P.M. as instructed. The responsibility was clearly on the Claimant who was on duty and so instructed.

"Section crews were working in the yard on that date. Certain tracks were tied up. But that condition in the yard existed for approximately six months.

"The record indicates that everyone in the yard, including the claimant, was under pressure. Even the Superintendent had worked through 24 hours. The mistake was not deliberate. Claimant is a capable yardmaster with a good work record for about 30 years. The unfortunate happening was probably occasioned by the pressures and the disorder in the yard.

"Petitioner argues that at most Claimant can be charged with an error of judgment. If so, the assessed penalty is too severe, particularly in view of the conditions in the yard.

"There is substantial evidence in the record to support disciplinary action. There is also no evidence in the record that the Carrier was arbitrary, capricious or discriminatory. That being so, we have no right to substitute our judgment for that of the Carrier and we have no right or power to modify or reverse the decision."

Fourth Division Award No. 2550 (Weston)

"Claimant concedes making the obscene comment and hearing Harrison tell him to `get down here' but did not recall any other statements. In any event, the fact remains that he did not get down and help clear away the tools.

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"The record does not establish any substantial procedural defect or that Superintendent Rice or any other representative of management prejudged the case. We see no justification for disturbing Carrier's findings of fact or substituting our judgment for that of management in assessing discipline. Claimant very definitely should have followed his supervisor's instructions, and the controversy regarding work outside job classifications and the fact that he had no prior record of discipline do not warrant interference with the fifteen-day suspension found appropriate by Carrier."

Fourth Division Award No. 3084 (O'Brien)

"At the hearing claimant testified that he knew train No. 227 was on track #14 with a cabin car on it. He also admits issuing instructions to the conductor and tower man to cut the 2 cars into #14 and to protect them with a skateman. He denies that he was ever told to discontinue classifying cars in this manner. He feels that he has complied with Carrier's instructions and that he provided proper protection for the cabin car through the use of a skateman.

"Carrier maintains that it has issued both verbal and written instructions to claimant that cars were not to be classified into a track occupied by a cabin car and that his failure to follow these instructions caused the 2 cars to be classified against the cabin car on train #227.

"The record reveals that following an incident similar to the one at hand in 1972, claimant was issued written instructions that the practice of classifying cars into tracks occupied by cabin cars on outbound trains without proper protection will be discontinued. Those instructions failed to make clear, however, that Carrier intended that cars were not to be classified into such occupied tracks under any circumstances. Claimant felt as though he fully complied with those instructions when he ordered the cabin car protected with a skateman.

"Yet, in addition to these vague written instructions Trainmaster Barksdale testified that he had told claimant within the previous 6 months to cease the practice of classifying cars onto tacks occupied by a cabin car. Whether claimant misinterpreted these verbal instructions is not clear. However, it is clear that they were not complied with and the collision occurred as a result. We thus conclude that Carrier has produced substantive evidence that claimant failed to follow verbal instructions that cars were not to be classified onto tracks occupied by a cabin car. His failure to follow these instructions, we believe, was the cause of the collision and while no damage to personnel or property occured (sic) the discipline imposed was justified in light of the potential harm that could have resulted."

Fourth Division Award No. 912 (Bailer)

"Claimant concedes he fell asleep but alleges it was due to excessive hours on duty for several days prior to September 8; that passenger car in which he fell asleep was empty; and that he had already fully taken care of passengers in other cars assigned to him.

"In reviewing Carrier's disciplinary action, this Board cannot properly substitute its judgment for that of Management. We are limited to ascertaining whether the evidence supports the charge against Claimant and whether, in assessing penalty, Carrier's action was arbitrary, capricious or in bad faith. Here it is undisputed that Claimant was asleep; that he was on duty and under pay. Fact that car in which Claimant was sitting was otherwise unoccupied is not material. We cannot quarrel with Carrier's assertion it was not paying Claimant Lane to sleep.

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"In summary, we find the evidence fully supports the charge and that Carrier's disciplinary action is not arbitrary, capricious or so excessive as to constitute bad faith."

Fourth Division Award No. 3159 (Eischen)

"Close examination of the hearing transcript shows that Claimant conceded that he was not sure of the location of the yard crew and yard engine; nor was he aware of the position of the rear end road crew of MC-3 or if proper protection for the movement was provided. Nonetheless, Claimant instructed the crew of MC-3 to make a reverse movement on the westbound main line which resulted in the sideswipe of the cars being handled by the yard crew on the westbound main line and derailment of four cars from MC-3. Based upon Claimant's testimony as to the foregoing facts, it is unquestioned that substantial evidence supports the imposition of discipline.

"As the yardmaster on duty, Claimant was responsible to properly supervise the movement of Train MC-3. We do not hold a yardmaster as guarantor of the proper performance of subordinate's duties, but he is accountable to a high standard of care in the performance of his own duties. We conclude that substantial evidence indicates that Claimant did not measure up to this standard in the movement of MC-3 on February 25, 1973.

"Finally, we cannot find the discipline assessed herein to be unreasonably harsh or excessive under the circumstances and accordingly we will not substitute our judgment for Carriers in this regard."

Public Law Board No. 4357, Award No. 1 (Lieberman)

"The Board notes that there is no doubt that the derailment which occurred, was due to an improper number of cars being shown in the computer for Track L 2. Furthermore, the transcript of the investigation reveals, that Claimant readily admits that he instructed the road checker to move the cars from Track L 2 to L 3 on the computer. At the same time, he admitted, that he issued instructions to the yard crew to place the nine cars in Track L 2. Thus, the computer was not consistent with the actual number of cars in the track in question and this was the proximate cause of the derailment. As the Board view it, there is no doubt but that the record supports Carrier's conclusions that Claimant was guilty of the charges. The measure of discipline was not inconsistent with the particular infraction involved here. For those reasons, the Claim must be denied."

Fourth Division Award No. 4733 (Wallin)

". . . The 4 Yard Yardmaster admits that she did not inform the Hump Yardmaster of the crew going onto the track from the pullout end. Likewise, the record does not reflect that the 4 Yard Yardmaster instructed the engine crew to inform the Hump end Yardmaster of their impending or actual entry onto the track, nor does the record show the crew made such a communication. Thus there were opposing moves unknowingly set into motion on the same track. The presence of the opposing engines became known only when the conductor of YICE-31 happened upon the conductor of CR-9 in the darkness. The CR-9 conductor was in between some cars trying to move a drawbar.

"At the conclusion of the Investigation, the Claimant was assessed discipline in the form of a reprimand.

"The Organization argues that the Carrier has failed to sustain its burden of proof of Claimant's guilt. It submits the evidence is clear that this event occurred solely due to the fault of others, most notably the crew of CR-9, in failing to communicate as Terminal General Notice #88 required. The Carrier contends it has proven Claimant had responsibilities independent of the crew of CR-9 which she failed to carry out. The fact that others may have failed in their responsibilities does not exonerate Claimant.

"Satisfaction of the burden of proof requirement is a close question in this matter. It has been sharply contested by the parties. By long established precedent, the role of this Board is to review the record before us to determine whether it contains substantial evidence to support the disciplinary decision of the Carrier. If the record contains such substantial evidence, it is not our province to substitute our judgment for that of the Carrier.

"Based on thorough review of the record, we conclude the Carrier has satisfied its burden of proof. The existence of a rule, policy or procedure is established both through Carrier witness testimony as well as Terminal General Notice #88."

Fourth Division Award No. 4734 (Wallin)

"The essential facts are not in dispute. Claimant was working the 4 Yard Yardmaster position on October 11, 1988. At about 10:45 P.M., the 4 Hump Yardmaster instructed the conductor of the Hump Engine known as CR-9 to start cars off on Track 424. At approximately 10:50 P.M., the engine crew began the assignment. The 4 Hump Yardmaster admits she did not communicate with the Claimant to report that she was sending an engine onto Track 424. Moreover, the record does not reflect that the Hump Yardmaster instructed the engine crew to inform the Claimant of their impending or actual entry onto Track 424. The conductor admitted that no such communication transpired. When asked why she did not inform the Claimant of the fact that she was going to start the track, the record shows the Hump Yardmaster replied that the 4 Yard crew are not usually working that early in the shift. Unaware of these activities, Claimant issued instructions at approximately 11:20 P.M. to the crew of YICE-31 to couple the same track. She admits she did not inform the Hump Yardmaster of the crew going onto the track from the pullout end. Likewise, the record does not reflect that Claimant instructed the engine crew to inform the Hump end Yardmaster of their impending or actual entry onto the track, nor does the record show the crew made such a communication. Thus there were opposing moves unknowingly set into motion on the same track. The presence of the opposing engines became known only when the conductor of YICE-31 happened upon the conductor of CR-9 in the darkness. The CR-9 conductor was in between some cars trying to move a drawbar.

"At the conclusion of the Investigation, the Claimant was assessed discipline in the form of a reprimand.

"The Organization argues that the Carrier has failed to sustain its burden of proof of Claimant's guilt. It submits the evidence is clear that this event occurred solely due to the fault of others, most notably the crew of CR-9, in failing to communicate as Terminal General Notice #88 required. The Carrier contends it has proven Claimant had independent responsibilities which she failed to carry out. The fact that others may have failed in their responsibilities does not exonerate Claimant.

"Satisfaction of the burden of proof requirement is a close question in this matter. It has been sharply contested by the parties. By long established precedent, the role of this Board is to review the record before us to determine whether it contains substantial evidence to support the disciplinary decision of the Carrier. If the record contains such substantial evidence, it is not our province to substitute our judgment for that of the Carrier.

"Based on thorough review of the record, we conclude the Carrier has satisfied its burden of proof. Claimant admitted she never previously assigned a crew to couple a track without speaking to 4 Hump. Moreover, she admitted she felt, in this situation, she had not handled here responsibility as Yardmaster at 4 Yard. In view of this, it was not an abuse of discretion for the Hearing Officer to conclude that Claimant failed to satisfy her work responsibilities.

"Inasmuch as the culpability of the Claimant is established by substantial evidence in the record, it cannot be said that discipline in the form of a reprimand was excessive or unreasonable."

Fourth Division Award No. 4779 (Duffy)

"While these contentions were advanced with skill and vigor and are not without merit, the Organization nonetheless cannot overcome the longstanding precedent in this industry that when there is an admission of guilt there is no need for further proof and the only remaining question is the degree of discipline, if any. It is clear from the record that Claimant freely admitted his guilt and, given his past record, which includes one termination and a reinstatement, which the Carrier considered in reaching its dismissal determination, it cannot be said that the Carrier's disposition in this matter was an improper use of its discretion. The Claim, therefore, must fail."

Second Division Award No. 12102 (Zusman)

"As to the merits, this Board has reread the Claimant's statement at the formal Investigation. The Claimant apologized for intending to remove for his own personal gain property that belong to the Carrier. The statement is an admission that the Claimant was in the act of theft. Claimant put three fifty pound tanks of Freon in his motor vehicle.

"The Claimant is a seventeen (17) year employee with only one previous infraction. Attempted theft of Carrier materials was more than a 'stupid action' and a 'mistake.' It was a grievous act of dishonesty against the Carrier. The Claimant indicated he was 'deeply sorry for his actions' and in essence requested leniency. This Board does not grant leniency. If guilt is established, it may only limit its review to the quantum of discipline. The Claimant was caught in the act of removing Carrier property. Theft is an action that this Board has ruled warrants dismissal. Dishonesty in any form undermines the nature of the relationship between the employee and employer. The Board does not find that the penalty of dismissal is excessive or harsh.

"The fact that the Claimant is a long term employee is something the Claimant should have considered before he acted to remove Carrier property (Second Division Awards 9140, 6615). The Carrier considered the Claimant's length of service in its assessment of whether to maintain the Claimant in its employ or sever the relationship. For its own reasons, the Carrier chose to dismiss the Claimant. In view of his admitted guilt, Carrier's dismissal was fully warranted. There was no violation of the Claimant's rights or any probative evidence that a Rule was procedurally violated. The Claim must be denied."

Second Division Award No. 12105 (McAlpin)

"Upon complete review of the evidence, the Board finds that the Investigation conducted by the Carrier was fair and impartial as required by the Rule. The Carrier was within its rights to withhold the Claimant from service and a reading of the transcript showed that the Organization and the Claimant were able to offer substantial and effective arguments on behalf of the Claimant. With respect to the Carrier's inability to prove that the Claimant was familiar with the Norak Operating Rules, normally this would be a serious charge on behalf of the Organization. However, the Claimant was charged with insubordination. This is well known not only throughout the railroad industry but all industry. The principle being that you follow the lawful instructions of your Supervisor unless there is a clear safety issue involved. If employees are unhappy with their treatment, there is a grievance procedure in place to adjudicate those claims.

"Clearly, if the Carrier has proven insubordination, and in fact the Claimant has admitted to insubordinate activity, a suspension of 18 days is appropriate even given the 11 years of service of the Claimant and his unblemished disciplinary record. It may be that the Claimant perceived that the Supervisor was acting in an irrational and arbitrary and capricious manner toward him, and he may have had compelling personal family business. However, workplaces are not debating societies. The Claimant must follow the instructions of his Supervisor unless there is a safety issue involved. If there was a question regarding the overtime pay that could have been resolved at a later date. Therefore, the Board finds that the Carrier has proven the violation in this case. The penalty is appropriate under the circumstances and, therefore, the Claim will be denied."

First Division Award No. 24111 (Fletcher)

"Claimant was assessed a thirty day deferred suspension for failing to have his train properly inspected following an emergency brake application. Testimony in the transcript of the Investigation establishes that Claimant moved his train when he knew that it had not been thoroughly inspected. A thirty day deferred suspension does not seem inappropriate in the circumstances of this case. The claim will be denied."

Fourth Division Award No. 4819 (Zusman)

"Having found no procedural error, we have reviewed the merits. There is sufficient probative evidence supporting a conclusion of guilt. The Claimant admits that he failed to file the incident reports. Having found the guilt established on the basis of the record, the only task left is to examine the quantum of discipline. Herein, the testimony and correspondence with regard to Claimant's Personal Record details numerous discussions, letters and instructions regarding past failure to file proper incident reports. Under these circumstances, the Board finds the discipline to be appropriate. The Claim cannot be sustained and the judgment of the Carrier will not be disturbed."

Third Division Award No. 29608 (Wesman)

"While it is commendable that Claimant was forthcoming with an admission of guilt concerning this incident, his admission does not diminish the potential consequences of his negligence. The Organization's statement that there was `no near accident' and the `Carrier incurred no liability' is moot when one considers what could have occurred.

"Although the penalty assessed by the Carrier may seem harsh under the circumstances, it has long been a policy of this Board to refrain from substituting our judgment for Carrier's unless we find the discipline assessed to be excessive and unreasonable or arbitrary. In light of the gravity of potential liability to the Carrier we see no reason to disturb Carrier's determination of discipline in this case."

First Division Award No. 24419 (Eischen)

"The General Code of Operating Rules was designed to promote a 'safe working environment for all employees as well as the general public.' Claimant was operating at restricted speed when he entered the yard limits, therefore, he was required to stop before passing the fusee. Claimant readily admitted that he 'knew the Rule stated that we should stop at the fusee.'

"Claimant is obligated to follow appropriate rules, and he exercised poor judgement when he failed to do so. We cannot fault Carrier for rejecting his excuse, especially since, when he finally did stop, he blocked two other crossings. With regard to the quantum of discipline, Carrier pointed to Claimant's personal record which 'shows discipline within the past two years for running through switches within yard limits.' Under the circumstances, Carrier's assessed discipline cannot be ruled inappropriate or excessive."

Public Law Board No. 5046, Award No. 2 (Mason)

"The assessment of discipline in this case was based primarily on the finding of guilt on the charge of violation of Rule 546. The language of the notice of discipline, set forth supra, clearly indicates that the discipline by disqualification was based on 'this finding' of guilt which, in fact, was admitted by Claimant. Even without a prior discipline record, this serious admitted violation would, in this Board's opinion, justify disqualification. Therefore, this Board will not alter or amend the discipline as assessed for the admitted dereliction."

Also,

"In this case, however, this Board does not find that Carrier's "statement only" reference to a prior record is so egregious an act as to permit this Board to ignore an admitted dereliction of the magnitude here involved and to life the disqualification which is the portion of the assessed discipline being challenged in this dispute. The assessment of discipline in this case was based primarily on the finding of guilt on the charge of violation of Rule 546. The language of the notice of discipline by disqualification was based on "this finding" of guilt which, in fact, was admitted by Claimant. Even without a prior discipline record, this serious admitted violation would, in this Board's opinion, justify disqualification. Therefore, this Board will not alter or amend the discipline as assessed for the admitted dereliction."