Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 40445
Docket No. SG-39441
10-3-NRAB-00003-060098
(06-3-98)
The Third Division consisted of the regular members and in addition Referee
William R. Miller when award was rendered.
(Brotherhood of Railroad Signalmen
PARTIES TO DISPUTE:
(Northeast Illinois Regional Commuter Railroad
( Corporation (Metra)
STATEMENT OF CLAIM:
"Claim on behalf of the General Committee of the Brotherhood of
Railroad Signalmen on the Northeast Illinois Regional Commuter
Rail Corp (Metra):
Claim on behalf of O. K. Coney, for payment for all lost wages, the
discipline against him rescinded and any mention of this matter
removed from his personal record, account Carrier violated the
current Signalmen's Agreement, particularly Rule 53, when it
imposed a five-day suspension against the Claimant, plus three days
that were formerly deferred, without providing a fair and impartial
investigation and without meeting its burden of proving the charges
in connection with an investigation held on March 2, 2005. Carrier's
File No. 11-13-486. General Chairman's File No. 5-D-05 Coney.
BRS File Case No. 13543-NIRC."
FINDINGS:
The Third Division of the Adjustment Board, upon the whole record and all the
evidence, finds that:
Form 1
Page 2
Award No. 40445
Docket No. SG-39441
10-3-NRAB-00003-060098
(06-3-98)
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.
Parties to said dispute were given due notice of hearing thereon.
On January 26, 2005, the Carrier directed the Claimant to report for a
formal Investigation on January 31, which was postponed and subsequently held on
March 2 concerning the following charge:
"You are hereby instructed to attend a formal investigation which
will be held on Monday, January 31, 2005 at 9:00 a.m. in the office
of Director of Engineering, 2067 W. 123rd Street, Blue Island, IL.
The purpose of this investigation is to develop the facts, determine
the cause and assess responsibility, if any, when you allegedly failed
to protect your position on Saturday and Sunday, January 22 and
23, 2005. Therefore you are hereby charged with alleged violation of
Metra Employee Conduct Rule `Q,' Paragraph #1. Your work
record, copy of which is attached, will be reviewed at this
investigation."
The pertinent Rule in dispute is Metra Employee Conduct Rule Q, Paragraph
No. 1 which states the following:
"Employees must report at the appointed time, devote themselves
exclusively to their duties, must not absent themselves, nor exchange
duties with, or substitute others in their place, without proper
authority."
On March 9, 2005, the Claimant was notified that he had been found guilty as
charged and was assessed a five-day suspension, plus three days that were formerly
deferred.
Form 1 Award No. 40445
Page 3 Docket No. SG-39441
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(06-3-98)
It is the position of the Organization that the Claimant was denied a fair and
impartial Investigation because it was held in absentia after it requested another
five day postponement without the Carrier finding out whether the Claimant was
medically fit to appear, especially in view of the fact that the Claimant's wife on
January 25, 2005, advised Supervisor Hettman that her husband had an accident on
January 22 in which he allegedly sustained a head injury. Additionally, it argued
that the Carrier has attempted to pyramid or "stack" one alleged failure to protect
his assignment from January 22 through 30, 2005, into multiple disciplinary
offenses. Therefore, it concluded that the discipline should be set aside and the
claim sustained as presented.
The Carrier argued that the Investigation was held in absentia after two
previous postponements. When the Organization belatedly asked for another at the
onset of the Hearing and it could not guarantee that the Claimant would report for
the next scheduled date, or that he was legitimately unable to appear, the Carrier
denied the request. Therefore, the Carrier argued that it was within its right to
proceed with the Hearing.
On the merits, the Carrier argued that the record speaks for itself that the
Claimant did not work on the days with which he was charged and coupled with the
fact that he chose not to appear at the Investigation, he has not rebutted its case.
Furthermore, it argued that the Claimant never offered any proof after the Hearing
was concluded that he could not appear for the formal Investigation. In closing, it
stated that the discipline was appropriate and should not be disturbed.
The Board thoroughly reviewed the transcript and record evidence which
constituted the first of three cases involving the Claimant. That record indicates
that the Claimant never offered any evidentiary proof that he was physically unable
to attend the Hearing. Therefore, it must be concluded that he chose not to appear
at the Investigation. As the Board previously stated in Second Division Awards
13957, 13989, and 13990:
"It is further noted there is no requirement that an accused must
attend their formal Investigation, but when a charged employee
chooses not to attend, he does so at his own potential peril because
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(06-3-98)
he offers no rebuttal or alternative theory or story. See Second
Division Awards 11763, 13217, 13360, 13491, and 13924."
It is clear that the Investigation was properly held in absentia. We will next
address the Organization's procedural argument that the Carrier attempted to
pyramid ("stack") multiple violations on top of one alleged failure by the Claimant
to protect his assignment. That argument has no relevance in this instance because
the subject case was the initial violation and the "stacking" argument only applies to
any subsequent cases that were allegedly improperly pyramided on top of this
dispute.
The Board, having determined that the Claimant was not denied his
Agreement due process right turns its attention to the merits. Our review of the
transcript indicates that Carrier witnesses' testimony, which was not refuted,
substantiates that the Claimant failed to protect his position on January 22 and 23,
2005, in violation of Rule Q, Paragraph No. 1. The Organization's vigorous effort to
defend the Claimant without his assistance could not overcome the un-refuted
testimony of the Carrier's witnesses. The Board has concluded that the Claimant's
behavior was not appropriate. It is clear that the Carrier met its burden of proof
that the Claimant was guilty as charged.
The only issue remaining is whether the discipline assessed was proper. Our
review of the discipline imposed reveals that it was in accordance with the Carrier's
Progressive Discipline Policy. Therefore, the Board finds and holds the discipline
was appropriate because it was not arbitrary, capricious, or excessive.
AWARD
Claim denied.
Form 1 Award No. 40445
Page 5 Docket No. SG-39441
10-3-NRAB-00003-060098
(06-3-9s)
This Board, after consideration of the dispute identified above, hereby orders
that an Award favorable to the Claimant(s) not be made.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Dated at Chicago, Illinois, this 14th day of May 2010.