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.
On January 3 the Carrier directed the Claimant to report for a formal Investigation on January 11 which was postponed and subsequently held on February 9, 2006, concerning the following charge:
The subject Rule in dispute is Metra Employee Conduct Rule Q, Paragraph No. 1, which states the following:
Also at issue is Engineering Special Instruction No. 1, Paragraph No. 4, which quotes Employee Conduct Rule Q, Paragraph No. 1 verbatim. Paragraph No. 6 of the Special Instruction states:
It is the position of the Organization that the Claimant was denied a fair and impartial Hearing, because the Investigation was held in absentia. It also argued that the concept of fairness would indicate that the Carrier improperly attempted to pyramid or "stack" like offenses within a small timeframe, which did not give the Claimant an opportunity to correct his behavior. 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 the Notice of Investigation was returned to it after three attempts at delivery to the Claimant's address. Based upon that, it was reasonable to go forward with the Hearing. On the merits it argued that the record speaks for itself that the Claimant was guilty as charged. 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 second of five cases involving the Claimant. As previously stated in Third Division Award 40445 the Claimant offered no 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. We reaffirm the principle set forth in Award 40445 that the Claimant was not obligated to attend the Investigation, but failing to do so deprives the reader of the record of any rebuttal or alternative story.
Despite the fact that the Claimant offered no assistance in his defense, the Organization set forth a sound argument on his behalf regarding the pyramiding of alleged multiple violations for one alleged failure to protect his assignment between December 29, 2005 and January 16, 2006, by separating or dividing that time frame into various time periods. The Board is in agreement with the Organization that the alleged violation in this instance is a continuation of the same violation that began on December 29, 2005. See Third Division Award 40449. In this dispute, just as we stated in Third Division Award 40444 the splitting of that continuing violation was in error and is contrary to the Carrier's Progressive Discipline Policy which allows Form 1 Page 4
employees an opportunity to work discipline off of their record by correcting their behavior. The Claimant's alleged violation in this instance was, in fact, part of one continuous violation which the Carrier pyramided into another in an apparent effort to expedite its Progressive Discipline Policy. The holding of the instant Investigation was simply the recharging of the Claimant with the identical offense arising out of the same continuous occurrence that began on December 29, 2005, which did not allow him any opportunity to correct his behavior. Therefore, the Board finds and holds, as we did in Award 40444, that the adding on or "stacking" of discipline by separating or dividing a singular continuous violation is contrary to the intent of fair and progressive discipline. Because of that, the discipline is set aside and the claim is sustained as presented.
