Brotherhood of Locomotive Engineers

Transcription

1 DONM. HAHS International President April 4, 2002 Brotherhood of Locomotive Engineers 1370 ONTARIO STREET CLEVELAND, OHIO 44113,1702 TELEPHONE: (216) FAX: (216) E MAIL: hahs@ble.org ALL U.S. GENERAL CHAIRMEN BROTHERHOOD OF LOCOMOTIVE ENGINEERS AWARDS CIRCULAR LETTER NO. 127 Dear Sirs and Brothers: Enclosed for your information and reference are copies ofvarious awards rendered by the Second,, and/or Fourth s of the National Railroad Adjustment Board as well as selected Public Law Boards and/or Special Boards of Adjustment. Please note that some of the awards may involve other Organizations and/or crafts. The awards selected for this circular address topics including Absenteeism, Altercations, Assurer Against Accidents, Disparate Discipline, Drug/Alcohol-Refusals to Test, Fraud Alleged Application for Employment, Insubordination, Progressive Discipline, Responsibility of Others, Investigation-Right To, ProofofService and Time Limits-Appeals. Other selected awards for this circular also address topics including Bulletins and Advertisements, Calling Crews-Good Faith Effort to Contact, Contracts-Rules of Interpretation, Emergency Alleged, Holiday Pay-Not in Connection with Own Assignment and Other Crafts Available, Interchange, Leave of Absence, Officers Performing Bargaining Unit Work, Outside Seniority or Assignment Limits, Overtime Entitlement, Part-time Employees, Rest Disturbed, Seniority-Forfeiture and Roster Protest, Stare Decisis, Switching by Road Crews-Not in Connection with Own Train, Number of Moves and Switching Allowances and Unilateral Promulgation of Policies. An index referencing the awards by citation and topical heading(s), with a briefsynopsis of each award, is also enclosed for your reference. Fraternally yours, President Enclosure cc: Advisory Board, w/ enc. ~ '3 3 Printed in U.S.A. AFFILIATED WITH A.F.L.-C.I.O. AND C.L.C. Serving Since 1863

2 INDEX SECOND - FOURTH DIVISIONS, NRAB PUBLIC LAW BOARDS / SPECIAL BOARDS OF ADJUSTMENT Board Second PLB 6284 Award Nos., Topical Headings, and Summaries Award No Wesman Where claimant was found to have been guilty ofan attendance related charge, but had not committed another similar offense for two and one halfyears prior to the incident subject ofthis case, probationary "final warning" ordered removed but disciplinary suspension offive days allowed to stand. ABSENTEEISM PROGRESSIVE DISCIPLINE Award No Benn Discipline.assessed in connection with a verbal altercation reduced to comport with that assessed (and subsequently upheld) the other altercant. Further held that altercations do not have to involve physical contact and that the initial recipient ofa verbal assault generates responsibility by responding in kind. Serves to show that the appropriate response to any verbal attack in the workplace is to simply walk away. ALTERCATIONS DISCIPLINE-DISPARATE Award No Bierig Where a maintenance ofway employee operating a dump truck secured it at the end ofhis shift by parking it with the brake set and the bed raised (to allow leftover asphalt to flow out), as per normal practice, and severe winds later blew the truck uphill into anotherparked truck causing extensive damage, held improper to place any responsibility with the charged driver. ASSURER AGAINST ACCIDENTS Award No Twomey Employee reinstated without pay where his refusal to undergo testing stemmed from his mistaken beliefthat having fulfilled the minimum number offollow-up tests (following an earlier return to service), he was not required to undergo any more, and he voluntarily submitted to testing when finally convinced of his mistake. DRUGS/ALCOHOL - REFUSALS TO TEST Parties TCIUv. Amtrak IBEWv. BNSF GTW BLEv. BNSF I

3 Award No Murphy "There is no dispute that the Claimant was dishonest when he submitted an employment application to Montana Rail Link in which he indicated that he had a high school diploma and had attended a junior college for one year. However, when the discovery ofemployment application falsification is not made until after a substantial intervening period of satisfactory employment, such as the case at bar, management is held to a heavy burden of proof to justify the maximum penalty of discharge for a later discovered falsification. In these circumstances, the time that has elapsedsince the falsification anddiscovery, in addition to the claimant's unblemishedpersonal record, mitigates what would otherwise constitute a dischargeable offense. " FRAUD ALLEGED - APPLICAnON FOR EMPLOYMENT Award No Murphy "The extremely limited grounds upon which an employee may justify an ostensibly insubordinate refusal or failure to obey a supervisory order include an order to perform an illegal or inherently unsafe act. In this case, the records shows that the Claimant explained andjustified his request to defer certifying his medical capability ofmeeting DOT regulations by pointing out that to do so, without clarification ofhis medical condition, was tantamount to perjury. In these unique circumstances, the continued insistence ofhis supervisors that he nonetheless sign the DOT Medical Examiner's Certificate was arbitrary and unreasonable. Accordingly, the carrier's conclusion that the Claimant was insubordinate was in error andthe discipline must be rescinded." INSUBORDINATION MRL DM&IR 2

4 Second Award No Murphy "In these particular circumstances the Carrierfailed to present credible evidence to support the charges leveled against the Claimant. Specifically, the Carrier failed to prove that the Claimant, who was seatedin the rearpassengerseatofthe hi-rail vehicle andwas literally 'alongfor the ride, ' couldhaveforeseen the accident or done anything to prevent the collision. The Carrier's mere assertion that the Claimant was 'careless ofhis own safetyandthatofhisfellow B&B members, 'is notsupported by the record evidence, and therefore, does not meet the burden ofproofrequiredofthe Carrier. " RESPONSIBILITY OF OTHERS Award No Marx An employee who resigned was subsequently restored to service on a conditional basis. One ofthe terms ofhis return to service was a stipulation that the violation ofany carrier rules during a one-year period would result in his termination without an Investigation. Heldthat while insuch circumstances a carrier may terminate an employee without an Investigation if an offense occurs, the carrier has the burden to prove that the offense actually occurred, ifchallenged to do so by the employees. INVESTIGATION - RIGHT TO Award No Zusman Where carrier defended against a claim that the Organization never received a declination by asserting, without substantiation, that their "files reflect" that a declination was sent, such held insufficient proof of service and appeal of discipline sustained procedurally. PROOF OF SERVICE TIME LIMITS - APPEALS Award No Benn Difference inpay awarded employee denied opportunityto bid on known vacancy not advertised in accordance with Schedule Rule. BULLETINS AND ADVERTISEMENTS I&M IAMAWv. UP TCIUv. CSXT BN 3

5 Second Award No Benn Furloughed claimant awarded earnings of assignment carrier failed to advertise pursuant to Schedule Ru1e. Rejected carrier's defense that no reliefshould be granted because the vacancy was the resu1t of another improper assignment for which the carrier already paid a separate penalty. BULLETINS AND ADVERTISEMENTS Award No Dennis Where a junior employee to claimant was used for an overtime work opportunity, and the carrier's defense was that the claimant could not be reached, a call list with "NO" pencilled next to claimant's name was deemed inadequate proof of a good faith effort to contact the claimant. CALLING CREWS - GOOD FAITH EFFORT TO CONTACT Award No Marx When construing ambiguous contract language, the ambiguity must be resolved against the party that authored the language. CONTRACTS - RULES OF INTERPRETATION Award No Benn An emergency condition that is proven to exist cannot be used to defend a contract violation once that condition ceases to exist. EMERGENCY ALLEGED Award No Benn When asserting the existence ofan emergency as an affirmative defense to a contract violation, even when the emergencyasserted is anticipated in the agreement (heavy snow), the carrier must buttress its assertion with hard evidence during handling on the property. EMERGENCY ALLEGED Award No Benn Whenfollowing the proper calling order necessitates thepayment of overtime, such in and of itself cannot serve to support the assertion ofan emergencyjustifying a departure from the proper calling order. EMERGENCY ALLEGED OVERTIME - ENTITLEMENT BN TCIUv. Amtrak BRCv.PBR CSXT CR Soo 4

6 Second PLB 5400 SBA 910 SBA 910 PLB 5658 SBA910 Award No Marx Where discipline is scheduled to begin on the day following a holiday, claimant deemed available for service for the purposes ofdetermining holiday pay eligibility. HOLIDAY PAY Award No Cluster Conductor ofroad crew awarded penalty day when required to throw switch to accommodate another movement not in connection with his road assignment. INCIDENTAL WORK -NOT IN CONNECTION WITH OWN ASSIGNMENT Award No Simon Penalty day awarded crew member ofroad switcher required to assist another road crew make a pick up, set offand air test not in connection with the claimant's assignment. INCIDENTAL WORK - NOT IN CONNECTION WITH OWN ASSIGNMENT Award No Peterson Penalty day awarded claimant road crew required to move locomotives not connected to their assignment out ofthe way of their own road power. INCIDENTAL WORK - NOT IN CONNECTION WITH OWN ASSIGNMENT Award No Cluster Penalty day awarded yard transfer crew required to deliver locomotives to or get from foreign carrier's diesel facility, when they would have.fit on the track where the cars interchanged where placed for pick up or delivery. INCIDENTAL WORK - NOT IN CONNECTION WITH OWN ASSIGNMENT INTERCHANGE Award No Peterson Conductor claimant awarded penalty day when required to remove ground air line and conduct initial terminal brake test when carmen where on duty and available. See, Carrier Member's Dissent, Labor Members' Concurrence, Neutral Member's Supporting Opinion, Interpretation, Carrier Member's Dissent to Interpretation, and Labor Member's Concurrence. INCIDENTAL WORK - OTHER CRAFTS AVAILABLE BRCv. ST UP Comail Comail BN Comail 5

7 Award No Wallin Where an employee occupying a non-agreement position was UP released from that position for cause (involvement in an alcoholrelated vehicular accident), and the carrier would not allow him to exercise his craft seniority, taking the position that the offense triggering his release from the position also severed all his employment with the carrier, held that the leave of absence provisions anticipation ofan employee vacating the positionfor any reason required that the claimant be allowed to exercise his seniority in his craft. LEAVE OF ABSENCE Award No Kenis Where a supervisor was used to clean snow from track switches, D&H lost earnings awarded to claimants who were off duty and available. OFFICERS PERFORMING BARGAINING UNIT WORK Award No Kenis "... it is well established that work within a specific seniority UP district must be reserved for employees holding seniority thereon..." OUTSIDE SENIORITY OR ASSIGNMENT LIMITS Award No Berm Awarded day's pay to furloughed employee when an employee CR from a different seniority district was used to perform service on the furloughed claimant's seniority district. OUTSIDE SENIORITY/ASSIGNMENT LIMITS Award No Meyers TCIUv. Where a Schedule Rule provided for part time employees but Amtrak placed strict limits on their use, particularly limiting their employment to five days per week, held that where a part time employee was required to work seven days per week, he was entitled to the benefits ofa full time employee. PART TIME EMPLOYEES 6

8 PLB 5263 SBA 910 Award No Johnson Penalty payment offour hours awarded claimant engineer who, after booking ten hours rest, was called out onhis legal rest. Held that carrier could not promulgate a rule conflicting with the agreementprovisions granting claimantthe option ofbooking ten hours rest, and that the fact that the Hours of Service law provided for a shorter rest period did not diminish claimant's rights under the agreement. REST DISTURBED UNILATERAL PROMULGATION OF POLICIES Award No Zusman Self-executing rules should be used to terminate employees only in instances where it is clear that the employee has abandoned his job. SENIORITY - FORFEITURE Award No Benn Where an employee was notified that his seniority was terminated and waited longer than sixty days to initiate a grievance challenging his termination, time to file claim held to toll from date seniority was terminated, notdate ofposting offirst seniority roster with claimant's name deleted. SENIORITY - ROSTER PROTEST Award No Benn Where the result ofan earlier award is debatable, such does not rise to the level ofpalpable error necessary to disregard the earlier award. STARE DECISIS Award No Simon Held that when road crews are required to run around cars in the course of effecting a pick up, such constitutes two ofthe three allowable moves under the 1991 NationalAgreement(pEB 219). SWITCHING BY ROAD CREWS - NUMBER OF MOVES CNW UP CSXT BN CR 7

9 PLB 6027 PLB 6305 PLB 4834 PLB 5180 Award No.2 - Criswell Held that when yard crews are on duty at one location they are considered on duty throughout a consolidated switching district. Also held that carrier cannot characterize one ofits own facilities as an "industry" for the purposes of gaining coverage under an agreement provision more favorable to an external customer. Finally, held improper for road crews to perform complicated unloading maneuver ofore trains at carrier-owned dock facility with yard crew available. SWITCHING BY ROAD CREWS - NUMBER OF MOVES Award No.1 - Eischen In sustaining switching time claims carrier argued were preempted by the 1985 National Agreement, refused to disregard prior awards favorable to the employees, honoring the principle ofstare decisis. STARE DECISIS SWITCHING BY ROAD CREWS SWITCHING ALLOWANCES Award No.6 - Fletcher Penalty day awarded crew required to switch a car out ofa cut of cars being picked up in interchange from a foreign carrier. Award holds that proper placement of the car was responsibility of delivering carrier. SWITCHING BY ROAD CREWS - NOT IN CONNECTION WITH OWN TRAIN INTERCHANGE Award No Twomey Awarded penalty day to road crew required to perform yard transfer at its final terminal with new locomotive and cars after having fmally its yarded its road train and disposed of its road power. SWITCHING BY ROAD CREWS - NOT IN CONNECTION WITH OWN TRAlN DM&IR UP B&O CSXT 8