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 twisted his ankle while attempting to step over loose ballast on a crosstie while carrying tools after performing some FRA defect correction work. The Claimant admitted seeing the loose ballast before trying to step over it. On October 25, 2005, four days after the injury incident, the Claimant and his supervisor met for a Formal Counseling session in accordance with Section 1 of the Carrier's Positive Behavior & Performance Development Policy. As part of that process, the Claimant's supervisor opted to complete a Performance Development Plan. Parts 1-7 of the Plan were completed by the supervisor.
In Part 1, the supervisor described the behavior or performance issue leading to the counseling as follows:
In Part 3, the supervisor described the future performance to be required of the Claimant as follows:
Similar supervisor comments were listed in Part 4 to describe the measures that the Claimant needed to take to raise his performance to the required level. Finally, in Part 7, the plan listed three future dates on which the Claimant's Form 1 Award No. 39339
performance would be reviewed with him: October 28, November 11, and November 28, 2005.
Space was provided for the Claimant's comments in Part 8. The Claimant wrote:
The Performance Development Plan was completed and signed by both the Claimant and his supervisor on October 25, 2005.
Six days later, by letter dated October 31, 2005, a different Carrier official initiated the Investigation into the Claimant's injury that resulted in the 5-day suspension and the instant claim.
The Organization advanced a procedural objection at the Investigation and maintained the objection during the appeal process on the property. It based its objection on the doctrine that prohibits "double jeopardy." In the Organization's view, the Claimant was disciplined twice for the same offense. We agree.
The Carrier's Positive Behavior & Performance Development Policy is a 17page document that essentially categorizes behavioral and/or performance misconduct into three stages for appropriate handling. Section 1 defines the stages of Informal Counseling and Formal Counseling. Informal Counseling is directed at the least serious infractions and does not result in any documentation.
It is clear from the record that the Claimant's immediate supervisor fully exercised the option under the Carrier's policy to invoke Formal Counseling after discussing the matter with the Claimant. The existence of the signed Positive Development Plan confirms that this option was exercised. The policy is clear that a supervisor can invoke Informal Counseling or Formal Counseling or discipline under the Agreement, but not more than one of the stages for the same incident. Indeed, the policy illustrates this election of options graphically on page 11. After the supervisor's completed exercise of the Formal Counseling option with the Personal Development Plan, the matter was fully and finally handled under the policy for the injury in question. The on-property record does not show any evidence whatsoever of subsequent behavior or performance deficiencies that would justify invoking the discipline procedure under the Agreement.
Given the foregoing discussion, we must conclude that the Carrier did attempt to discipline the Claimant twice for the same injury. Thus, we must sustain the Organization's objection and overturn the five-day suspension he has been assessed. The Carrier is directed to reimburse the Claimant for his actual wage loss resulting from the suspension pursuant to Rule 18 of the Agreement. Form 1 Award No. 39339
This Board, after consideration of the dispute identified above, hereby orders that an award favorable to the Claimant(s) be made. The Carrier is ordered to make the Award effective on or before 30 days following the postmark date the Award is transmitted to the parties.