The Second Division of the Adjustment Board, upon the whole record and all the evidence, finds that:
The carrier or carriers and the employee or employees involved in this dispute are respectively carrier and employee within the meaning of the Railway Labor Act, as approved June 21, 1934.
This Division of the Adjustment Board has jurisdiction over the dispute involved herein.
The Claimant, Mark E. Mittermeier, was dismissed from service from his position as an electrician at the Carrier's North Little Rock, Arkansas locomotive facility as a result of an investigation held August 5 and 6, 2004 for allegedly engaging in dishonesty, failure to report an injury in a timely manner, and the acceptance of light duty which was not required.
The Organization argued that the Claimant was injured while on duty on June 8, 2004 as a result off improper use of an overhead crane by another employee. The Organization noted that the Claimant was a 30-year employee of the Carrier. He was deprived of a fair and impartial investigation during which the Carrier failed to satisfy its burden of proof. In addition, the discipline assessed to the Claimant was excessive. Rule 37 requires a fair and impartial hearing together with a precise charge. The Organization would note that the Carrier then corrected its notice of investigation. At the investigation there was no showing or proof that the Claimant was guilty of any of the charges against him.
With respect to the Claimant's injury, the Claimant was able to see his own physician and was then sent to an orthopedic specialist. The video surveillance of the Claimant was overwhelmingly exaggerated. The Claimant was observed for limited periods of time on June 9, and June 10, 2004. This showed the Claimant basically tending to simple errands and performing tasks that were not inconsistent with his injury. Nothing on the video can adequately depict how the Claimant was actually Form i Award No. 13903
feeling at the time. The Carrier investigator failed to appear at the investigation. The Claimant has the right to face all of his accusers. The Claimant returned to work on the restricted light duty on June 11, 2004 and performed all instructions by the Carrier. The evidence in the transcript clearly shows that the Claimant is not guilty of any cited rule violations. The Claimant's record is absent of any discipline. Therefore, the punishment in this case is patently excessive. The investigation was neither fair nor impartial. The Carrier failed to justify and discharge its burden of proof on all issues. Therefore, the claim must be sustained.
The Carrier argued that the evidence at the investigation proves that the Claimant violated Rule 1.6 in several ways. In addition there was irrefutable evidence that the Claimant violated Rules 1.13 and 1.15. With respect to the Organization's claim that the investigation was neither thorough nor fair, the record shows that it was both thorough and fair. The Claimant alleged that the notice of investigation was vague. However, it is apparent in the record that the 201 pages of testimony show that the Claimant was vigorously and thoroughly represented. The decision to dismiss the Claimant is consistent with Board precedent. Numerous citations were provided.
The record in this case shows that the Claimant's story doesn't wash. He chose to lie and misrepresent his ability. He has a duty to go back to the job as soon as possible and he did not. In addition to the above, the Claimant stated that the overhead crane was not operating properly. In fact, the crane was operating properly. It was the operator that had a problem. Based on the above, the claim must be denied.
The Board finds the investigation meets the requirements of the rule and the letter of investigation was sufficiently clear for the Claimant to receive a fair and regular investigation and to be properly represented. The Carrier has not proven dishonesty (in the normal understanding of that term) to the level required under the circumstances of this case. Certainly, within the record of this case there is a lot of smoke, but the Carrier must prove in a clear and convincing way that the Claimant intended to deceive the Carrier. The Carrier, however, has proven in a clear and convincing way that the Claimant both failed to report his injury in a timely manner and accepted light duty which was not required given the circumstances of his injury. These are both very serious charges. The Board reviewed the videotapes in this case. These videotapes are conclusive evidence of the correct nature of the last two charges against the Claimant. We come then to the appropriateness of the penalty. The Board Form 1 Award No. 13903
NRAB Second Division Award No. 13903. Docket No. 13779
(Referee Raymond E. McAlpin)
The majority decision to deny the employees' claim is without authoritative precedent support and in direct conflict with the clear language set forth under the Controlling Agreement. Based on the Board's decision, one might conclude that the Carrier may charge and discipline an employee on one offense, only later to have the Board uphold the imposed discipline based on separate, unrelated and unsubstantiated charges to which the employee was not apprised. That would be a mistake and clearly a breach of the claimant's due process rights. This award is palpably erroneous and a dissent is required.
The Carrier and the Organization are parties to an agreement, specifically Rule 37, which unambiguously states in pertinent part that "No employee shall be disciplined without a fair hearing...At a reasonable time prior to the hearing, such employee and his duly authorized representative will be apprised of the precise charge..." The precedent has been well established that a notice of hearing is to assure the employee of a clear statement of the subject matter of the hearing so that he can properly prepare his defense. Such requirements also comport with the larger purpose of guaranteeing him a full, fair and impartial hearing. This is an elementary requirement that must be met, otherwise the employee will be exposed to a denial of due process. The record in ibis matter establishes that Claimant was served with Carrier's notice to appear for formal investigation on the following charges, quoted in pertinent part:
Subsequently, the Investigating Officer concluded that the charges against Claimant had been substantiated at the formal hearing, quoting in pertinent part:
Finally, Carrier's only correspondence during the handling of this dispute on appeal concludes with the following:
Based on the foregoing, it is undisputable that Claimant was chard and ultimately dismissed on charges of alleged dishonesty in connection with an on-duty injury. In this regard we point to the Board's initial findings, quoted as follows:
Without reference to any of the fact-bound issues arising in this case, error stands out in the Board's unsighted reasoning and exception is taken to its concluding decision, as follows:
contained in the record upon which the Carrier Officer made his decision is improper and may not be considered by the Division on appeal.
Finally, the Board failed to take into account or even address the employees' fervent position that Claimant was a thirty (30) year employee with an unblemished work record. It has consistently been held by numerous prior Awards which we need not list here, that credence should be given to the substantial seniority and unblemished work record of an employee prior to the particular circumstances under review when weighing the quantum of discipline issued by the Carrier. The Board failed to take this factor sufficiently into mitigating account.
The Boards decision in Award 139113 is a perversion of the agreement and therefore the Organization dissents to the decision rendered by the Board and cannot consider it as precedent.