It is the position of the Organization that the Claimant was denied a fair and impartial Investigation because the Hearing Officer had previously assessed discipline against him and he was the Hearing and Disciplinary Officer in this instance. Additionally, it argued that the concept of fairness would indicate that the Carrier had improperly attempted to pyramid or "stack" like offenses within a small timeframe, which did not give the Claimant an opportunity to correct his behavior. Simply stated it asserted that the Claimant was off continuously between December 29, 2005 and January 25, 2006, and this case was a continuation of the alleged violation already addressed by the Board in Third Division Award 40449 and there was no basis for separating this dispute from the aforementioned case.
On the merits the Claimant testified that he did not ask Supervisor Heim to be off because he was under the assumption that his Testman position had been abolished, and Heim was no longer his Supervisor. The Organization concluded that the discipline should be set aside and the claim sustained as presented.
It is the Carrier's position that the record indicates that the Claimant did not report to work on January 23, 24 and 25, 2006, and he did not request permission to be absent. It further argued that the Claimant's testimony that he did not ask Supervisor Heim to be off on the aforesaid dates because he thought his position had been abolished, and Heim was no longer his Supervisor lacks credibility. According to the Carrier, that testimony is completely contradictory to that of Heim who testified that he told the Claimant that he would abolish the Claimant's position after he returned to work. Lastly, it points out that the Claimant's job was not abolished and it never issued a notice of job abolishment. It closed by asking that the discipline not be disturbed. Form 1 Award No. 40452
The Board thoroughly reviewed the transcript and record evidence, which constituted the fourth in a series of five cases involving the Claimant.
We will first address the Organization's procedural argument that the Hearing Officer should _not have rendered the discipline. Rule 53 - Investigations and Discipline does not address who shall sign the Notice of Investigation, nor does it state who shall hold the Hearing or sign the Discipline Notice, but it does require a "fair and impartial" Investigation. Countless decisions have been rendered regarding multiple roles filled by a Hearing Officer. In Third Division Award 35506 the Board ruled as follows:
Contrary to the Organization's argument in this case, it has often been argued that the Hearing Officer should render the decision after the Investigation rather than someone who was not in attendance, because he was in the best position to make credibility decisions. (See Third Division Awards 14031, 17165, 17901, 20164, 30601, 31174 and 32297). On this same property in First Division Award 25401 the Board reviewed a case wherein the Hearing Officer scheduled the Investigation, conducted the Hearing, and issued the discipline. Therein the Board held:
The Board reiterates its concurrence with the principle that whenever multiple roles are filled by one officer in disciplinary matters, the Carrier must exercise caution because of the potentiality for the violation of an employee's Agreement due process rights. As stated above, the specific Agreement in dispute does not prohibit the multiplicity of roles in the disciplinary process, however, it does require the Board to examine each case on an individual basis to ensure that employees were provided fair and impartial investigations. In this instance, the transcript and record evidence substantiates that the Claimant's Agreement due process rights were not trampled upon and he was provided a fair and impartial Investigation.
The Board next turns its attention to the Organization's pyramid argument. In prior cases the Board has determined that in some instances the Organization's argument that the Carrier had improperly attempted to pyramid like offenses within a small time frame by separating or dividing one continuing violation had merit because it was contrary to the Carrier's Progressive Discipline Policy. In this case, that argument has no validity, because the record proves that the Claimant requested time off which was granted between January 16 through 20, 2006. Therefore, that granted time off (leave of absence) breaks the Organization's continuance argument that this case is tied to another. The instant case is a standalone-case and is not part of any prior continuing violation.
Turning to the merits, testimony at the Investigation reveals that the Claimant did not report for work on January 23, 24, and 25, 2006 and he did not request permission to be off. Supervisor Heim testified that the Claimant did not call in prior to his absences on any of the aforementioned dates to request permission to be absent. The Claimant admitted that he did not request permission to be off work.
He further testified that he did not request permission to be off on the aforesaid dates because he thought his Testman position had been abolished, and Supervisor Heim was no longer his immediate Supervisor. The Claimant's testimony was totally contrary to Heim's testimony. Heim testified that he did not tell the Claimant during their January 15 conversation that his job had been Form 1 Award No. 40452
abolished. Instead, Heim asserted that he told the Claimant that his job would not be abolished until after he returned to work.
The record verifies that the Claimant's job was not abolished, nor was there a notice of job abolishment issued. The Claimant had no logical reason to conclude that his job had been abolished and he no longer needed to receive authority to be absent. Based upon the record produced at the Hearing there is not one shred of evidence that aids the Claimant in his defense, including his own self-serving testimony, which lacked credibility. The record is clear that the Carrier met its burden of proof that the Claimant was guilty as charged.
The only issue remaining is whether dismissal was appropriate. At the time of the incident, the Claimant had approximately 19 years of service with a less than stellar work record. That record included more than one dozen disciplinary infractions, including one prior dismissal for Rule "Q" which was reduced to a suspension with reinstatement on a leniency basis. The Carrier has attempted to use progressive discipline over the years to alter the Claimant's inappropriate behavior to no avail. The Board finds and holds that the discipline was appropriate because it was not arbitrary, capricious or excessive.
This Board, after consideration of the dispute identified above, hereby orders that an Award favorable to the Claimant(s) not be made.