PUBLIC LAW BOARD NO AWARD NO. 8 THE DENVER AND RIO GRANDE WESTERN RAILROAD COMPANY

Transcription

1 Case No. 8 PUBLIC LAW BOARD NO AWARD NO. 8 THE DENVER AND RIO GRANDE WESTERN RAILROAD COMPANY VS. UNITED TRANSPORTATION UNION STATEMENT OF CLAIM: Claim is made in favor of Switchman M. O. Tester for vacation privileges, health and welfare benefits, and one day's pay for December 3, 1986 and each subsequent date thereto until finally allowed to return to service account his dismissal was unwarranted, unjust and excessive punishment. We also request that any record of the dismissal be expunged from the claimant's personal record. STATEMENT OF FACTS: Switchman M. D. Tester (hereinafter claimant) was employed by the carrier on August 4, In the absence of any affirmative evidence to the contrary we presume that claimant's service record was exemplary until November 21, On such date, claimant, together with Engine Foreman W. B. Smith, Switchman R. J. Anderson and Engineer L. L. Rentfro, were working as a switch crew at carrier's Roper Yard, Salt Lake City, Utah. Shortly before 11:00AM on such date Division Car Foreman J. L. Cain directed Foreman Smith to have his crew shove several cars up to the derail located on Track No.2, in preparation for making several other associated switching moves. Foreman Smith

2 Page No. 2 responded by visually checking to ensure the derailer was in a protective position for the move and then took the "control position" for the movement (Le. placed himself in the direction in which the cars were being shoved). Claimant Tester was dispatched to a mid-train position in order to relay Foreman Smith's hand signals to the engineer, inasmuch as the curve of the track prevented a line-of-sight operation. Switchman Anderson, who was functioning as a pin puller, was aboard the engine, seated on the opposite side from Claimant Tester's position. The shove was initiated and controlled by hand signals from Foreman Smith as relayed by Claimant Tester; however it was prematurely halted approximately five car lengths prior to the location of the derail. After a short pause, Foreman Smith, who was the only member of the crew with a portable radio, notified the engineer that the remainder of the move would be controlled by radio communication, and ordered the movement to resume. Having abandoned the use of hand signals, Foreman Smith relied exclusively on voice communication, thereby excluding claimant from the "communication loop". Foreman Smith in the presence of observing Supervisor Cain, began properly calling out the reducing distances between the trailing car and the derail, until he stated, "That will do, that will do", in an attempt to alert the engineer to immediately stop all movement. Notwithstanding such attempted transmissions, both Engineer Rentfro and Switchman Anderson avow that they did not hear Foreman Smith report the rate of closing (car lengths), or

3 PLB No Page No. 3 indicate the necessity to stop. Notwithstanding this "communication blackout", the engineer blindly continued the movement, traveling approximately eight car lengths before he heard an unidentified voice on the radio exclaim, "Stop 139". Engineer Rentfro immediately reacted to the alarm; however, by that time one car had partially derailed and the consist had penetrated and inflicted physical damage to the Roper Repair Building, a Pettibone crane, and several other cars being repaired inside such damaged building. As a result of the accident all four crewmen (Smith, Tester, Anderson and Rentfro) were noticed to appear for an investigation to, "...determine facts and place responsibility, if any, in connection with the alleged failure... to properly protect the movement of a cut of cars while spotting... ". During the November 25, 1985, investigation the organization raised numerous procedural objections, including, but not limited to, the inadequacy of the notice, unjustified expansion of the charges and prejudgment. Notwithstanding such procedural challenges, on December 3, 1985, claimant was advised by Superintendent S. W. Wait that the evidence developed during the investigation mandated his immediate discharge. The organization initiated an appeal of such decision, expanding their procedural objections to include a charge that the hearing transcript was incomplete (inaccurate). While such appeal was being processed towards final resolution, the carrier, without solicitation or explanation, unilaterally reinstated the claimant; effectively converting the discharge to a disciplinary

4 Page No. 4 suspension (December 3, February 2, 1987). Notwithstanding such unilateral reduction in the disciplinary sanction, claimant pursued his appeal, which has been properly processed to this board for resolution. FINDINGS: After considering the organization's numerous procedural objections we find the evidence of record to be contra to such allegations. As previously affirmed by this board, an investigation notice need not reflect the same degree of specificity as a criminal indictment. It will suffice if it narratively provides enough information to afford a claimant reasonable notice of those matters he will be required to explain (defend against) during the investigation. In evaluating the manner in which the investigation was conducted, we are not persuaded that the proceeding was fatally flawed by the prosecutory approach taken by Superintendent Wait, or his evidentiary rulings. Also, there was insufficient proof to mandate a summary ruling affirming prejudgment, suppression of evidence, the denial of due process or material variances in the investigation transcript. Accordingly, we find that claimant was afforded adequate notice and a fair investigation, in accordance with the terms of the agreement. In considering the substantive issues we are persuaded that carrier's proof is too anemic to support any disciplinary sanction against this particular claimant. The quantum of proof necessary to sustain such a serious accusation, which originally spawned a decision of discharge, must be at least clear and convincing, if not beyond a reasonable doubt.

5 Award No.8 Page No. 5 The carrier's theory of culpability is akin to the common law doctrine of res ipsa loquitur (i.e. the presumption that claimant violated the carrier's rules because the movement of the train was in his crew's primary control and the accident is not the type that ordinarily happens in the absence of negligence). While such legal doctrine is generally recognized and endorsed by arbitrators, it will not support a disciplinary charge where there is an intervening cause, which supersedes an antecedent cause, thereby breaking the continuous sequence essential to the proper placement of fault. The admission of Division Car Foreman Cain that Foreman Smith was exerting his best efforts to comply with the supervisor's instructions, after having properly positioned claimant to observe and convey hand signals, creates a rebuttable presumption that it was Engineer Rentfro's persistence, in continuing the move (seven to eight car lengths), following the avowed break in radio communications, that was the intervening cause which ultimately resulted in the accident. If, as the company avows, the radio was working properly, then Foreman Smith's instructions, which could not be heard by the claimant, were ignored by the engineer. Alternatively, if the radio signals were interrupted, as avowed by the engineer, neither Foreman Smith nor Claimant Tester were made aware of such interruptions in time to convert to hand signals in response to the developing emergency. Therefore, under either alternative, the two crewmen on the ground (Smith/claimant) were not persuasively shown to have been sufficiently in control of the situation to have had the last clear chance to prevent the accident.

6 Award No.8 Page No. 6 Accordingly, we are persuaded that claimant, because of his geographical position and lack of any radio that would have allowed him to monitor the situation, was not persuasively shown to have violated any carrier rules, or to have been negligent. Therefore he is entitled to have the discipline struck from his record and to receive compensation for the work time lost, in accordance with the provisions of Article 16 (h). In addition to reimbursement for lost wages, a part of the relief sought by Claimant Tester includes a prayer to be "made whole" for all health and welfare benefits and vacation privileges that were lost as a direct result of the unwarranted assessment of a disciplinary suspension. In examining the relevant provisions of the collective bargaining agreement, which treat with the exoneration of employees who have been assessed disciplinary sanctions, we find that Article 16 (h) is the primary operative provision: (h) In case discipline is found to be unjust, the employee involved, if dismissed, will be reinstated with full pay for the time he has been out of service. Full pay will mean one day's pay for each twenty-four hours at the rate pertaining to his class of service. If disciplined by demerit marks or reprimand, all such notations will be removed from his record. Notwithstanding the preciseness of the above quoted rule, the organization argues that the term "pay", as envisioned by the framers, implicitly included all pecuniary benefits which cannot be reasonably severed from the total wage package (insurance/vacation). It avows that such reimbursement obligations (insurance/vacation) have been considered and specifically ordered by several arbitration awards on this

7 Award No. B Page No. 7 property. Accordingly we should be compelled to give authoritative force to such decisions under the legal principles of "res judicata" and/or "stare decisis". While arbitration awards are not precedential to the same degree as court decisions, we nevertheless endorse such legal principles, and normally enforce a well reasoned award which involves essentially the same facts and parties. Consequently we devoted much time toward the study of all of the rulings cited by the organization in support of its argument; and have carefully measured each sustaining decision against the carrier's opposing allegations. Significantly, such awards contain no reasoned opinion which would afford us some indication that the board's conclusions were dictated by substantive analysis of the subject matter involved. Based on our study we are persuaded that the decisions relied on by the organization are factually distinguishable and represent only a restrictive jurisdictional finding, rooted solely on the fatal omissions by the carrier to raise the pivotal issue in a timely fashion. Furthermore, the mandamus order of the federal district court, also cited by the organization in support of its argument, reflects only a narrow aspect of federal common law, which essentially prohibits a United States Federal District Court from considering the underlying issues when it is involved in an action to enforce an arbitration award. The court's decision in the cited case stands for the proposition that a federal court cannot invade and/or overturn an arbitrator's award, except for three specific reasons (i.e. fraud, misconduct, jurisdictional

8 Page No. 8 excess); and in no event is the court to independently consider, or rule on, the substantive. issues involved in the underlying dispute (see Burchell v. Marsh, 58 U.S. 344, Wilko v. Swan, 74 S.Ct. 182; U.S. Bulk Carriers, Inc. v. Arguelles, 91 S.Ct. 409). Based on our analysis we consider the particular substantive issues relating to benefit/vacation claims to involve a type of special damage, which has never been timely raised, independently considered on the merits, or substantively ruled on prior to this dispute. Accordingly, we find no binding precedent and, inasmuch as these issues have been timely raised as an integral part of the damage issue in this dispute, we are obliged to consider the merits of each party's argument on a de novo basis. The jurisdiction of this board is necessarily limited to interpreting the collective bargaining agreement (Article 16 (h)); furthermore our authority does not expressly or impliedly include traditional equity powers, normally associated with damage awards granted by civil courts. If we exceed our limited authority, by publishing a decision which effectively creates an "addendum" to the parties' written agreement, regardless of how logical, equitable, well reasoned, or well-intentioned our opinion, a court of competent jurisdiction can properly set our decision aside (jurisdictional excess). While we recognize that it is a fundamental principle of damages that a person, who has been consequently injured by the wrongful or negligent act of another, is entitled to a reasonable recompense, the common law rules relating to the assessment of damages distinguish between a breach of contract and a simple

9 Page No. 9 tort. The theory on which back pay is awarded to a disciplined employee, who is subsequently exonerate, is the akin to the theory followed by civil courts in awarding damages from breach of contract (i.e. to make the employee whole for the losses sustained by reason of the employee's wrongful disciplinary action). Here the parties mutually agreed on the measure of damages to be applied when an arbitrator determines that an employee has been unjustly dismissed. However, the framers made no specific provision for those employees who were exonerated when a lesser disciplinary penalty (suspension) was imposed. Based on such a contractual hiatus we deem this board's jurisdiction to implicitly include the authority to fashion a reasonable remedy to compensate a damaged claimant, who is undeserving of the discipline assessed, provided our "make whole" decision does not violate the spirit and intent of Article 16 (h). A. HEALTH AND WELFARE BENEFITS: In considering the issue of health and welfare benefits, the carrier's underlying contractual obligation extends only to the payment of premiums sufficient to purchase a specified level of medical benefits for the employee (eligible dependents). Therefore, when an employee is temporarily suspended from service as a disciplinary measure, such premium payments, routinely made in behalf of the employee (eligible dependents), mayor may not be discontinued by the carrier, depending on the duration of the suspension involved. Where such premium payments are to be suspended in conjunction with the disciplinary action,

10 Page No. 10 in our judgment the carrier owes a duty to ensure that the employee is put on notice (actual or constructive) of the impending loss of insurance coverage as an adjunct tc the disciplinary action. Clearly, when discharge is involved, the loss of such insurance coverage may be reasonably assumed by the effected employee, solely from the nature of the disciplinary action; thereby making any special notice requirement superfluous. Concurrently, such notice (actual or constructive) of the carrier's discontinuation of the insurance premium payments creates a corresponding duty on the suspended (discharged) employee to exercise reasonable care and diligence to minimize the consequences of the loss of insurance coverage during the appeal of his claim. Inasmuch as essentially all group health care programs are required to provide a personal conversion privilege, the effected employee can, through the outlay of a moderate sum, protect himself (eligible dependents) from the injurious consequences (intervening medical expenses) of his suspension (discharge) during the appeal of his claim. If the employee properly responds to such mitigating duty, and is later exonerated, in our judgment the premium costs he incurred to maintain such insurance coverage should be considered as an integral part of his "full pay" (Article 16 (h», for which he is entitled to be reimbursed. Conversely, if the employee fails to exercise such conversion privilege, to ensure that he retains his (eligible dependents) insurance coverage for the duration of such appeal, and by reason of such failure his

11 Page No. 11 consequential damages become aggravated (i.e. incurs medical expenses that would otherwise have been covered by his regular insurance), he may not recover for such consequential damages (medical expenses) under the provisions of Article 16 (h); nor would he be entitled to reimbursement for insurance premiums which he elected not to pay. In the dispute before us the record indicates that claimant knew, or actually should have known, commensurate with his original discharge, that his (dependents) insurance coverage would also be canceled. However, the record is void of any evidence indicating that claimant actually incurred premium costs to provide himself and his eligible dependents with medical coverage during the days in which he was actually removed from service. Based on such lack of evidence, and the fact that this board is the first to consider this particular substantive issue, we find that claimant, at most, is only entitled to reimbursement for the premium costs he actually incurred, if any, as a result of his personally maintaining medical insurance during his disciplinary suspension. B. VACATION BENEFITS The second "benefit" claimed in this dispute involves an artificial accretion of vacation credit for the.period of the disciplinary suspension. Clearly the provisions of Article 16 (h) expressly limit an exonerated claimant's reimbursement entitlement to "pay" for the duration of his termination (suspension). No reference is made to the awarding of the type of benefit credits exclusively generated by active service.

12 Page No. 12 However, a practical effect of this mandatory reimbursement pay provision is to allow the claimant to receive full pay for a period of time when he is actually free of all duty; a "benefit" which serves the traditional purpose of vacation and is made more significant by the prohibition against mitigating (reducing) such liquidated pay damages by offsets for any interim earnings claimant received from other employment during the processing of his appeal. Significantly, the working agreement involved in this dispute links the vesting of vacation credits with actual services rendered; a pivotal condition which puts vacation accrual in a separate category from other types of benefits which are more akin to an employee's regular pay. Based on the applicable contractual provisions we deem this board to be without contractual justification or authority to order that claimant, as an integral part of his pay loss, also receive vacation credits as if he had performed service for the carrier during his absence (suspension). However, an exonerated claimant is entitled to be credited with any vacation credit he had already earned (vested), but not used, prior to his removal from service for disciplinary reasons. In addition, such employee should not be considered to have incurred any "break" in "continuity of service", which would have the prospective effect of extending the years of service he would have to accrue before becoming eligible to "earn" vacation days at a higher annual rate (i.e. more vacation days per year of service).

13 Award No.8 Page No. 13 Based on the rationale set out hereinabove we find no contractual basis to order the carrier to pay, as a part of lost wages, additional compensation in recognition of any insurance (health and welfare) expenses, except for the reimbursement of actual premium costs actually incurred and thereby qualifying for reimbursement, as defined hereinabove. Nor are we contractually authorized to mandate the vesting of additional vacation credit that might have been accrued by the claimant had he actually continued working during the period of his disciplinary absence. AWARD: Claimant Tester is to be reinstated with a full day's regular pay (Article 16 (h)) for each day that he was improperly withheld from service for. disciplinary reasons. In addition claimant will, upon a proper showing, be entitled to reimbursement for any medical insurance premiums he actually incurred to maintain his (eligible dependent) coverage during such forced absence. Furthermore, claimant's seniority shall be restored and his record will not reflect a break in service which would effect his future vacation accrual rate, as prescribed hereinabove. Carrier's disciplinary action will be purged from claimant's record. Furthermore, this board hereby retains jurisdiction to ensure the proper interpretation and implementation of this award.

14 Page No. 14 Carrier is directed to implement this award within 30 days of the effective date hereof. (~~. ~.J. a-->~ M. M~lfRIS, Carrier Member D. ~SMITH, Organization Member o TE