The Third 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 was first hired by the Carrier on March 28, 1996. At all times relevant to this dispute, he was employed as a Vehicle Operator. On October 29, 2008, Manager Track Maintenance James C. Majeski issued the Claimant a letter stating as follows:
Sometime thereafter, the Claimant was directed to attend a formal Investigation at 10:00 A.M. on February 10, 2008, ". . . for the purpose of ascertaining the facts and determining your responsibility, if any, in connection with your alleged failure to comply with M/W S7C 64.3, FRA and Department of Transportation law (Pre-trip Inspections) as evidenced by the fact that you allegedly operated vehicle no. 801895, and the last annual inspection expired 2008."
Approximately one-half hour following the conclusion of this Investigation, the Carrier conducted a second Investigation involving the Claimant:
By notice dated February 12, 2009, the Carrier advised the Claimant that it had determined, by substantial evidence, that he was responsible as charged in the first Investigation. He was, therefore, assessed a 30-day actual suspension and a 45day suspension held in abeyance for one year. A Notice of Discipline in connection with the second Investigation was issued on February 23, 2009 dismissing the Claimant from service effective March 2, 2009.
Timely appeals of both disciplinary actions were filed by the Organization and denied by the Carrier. While the appeals of the disciplinary actions were handled as separate claims on the property, they were joined upon appeal to the Board. Form I Award No. 41467
In its appeal to the Board, the Organization raised issues concerning the fairness and impartiality of the Investigations. The Carrier objected to these arguments, asserting that they had not been raised during the handling of the claims on the property. The Organization acknowledged that they were new arguments. Under the rules governing the Board, we may not give consideration to arguments or evidence that had not been exchanged during the on-property handling. We will consider this case, therefore, based upon the record developed on the property.
With regard to the first Investigation, the Carrier argues before the Board that it established that the Claimant failed to check the fluid levels of his truck prior to operating it. Carrier Rules, as well as Department of Transportation regulations, require this as part of the mandatory pre-trip inspection. The Claimant acknowledged that he failed to do so. It is relevant, argues the Carrier, that the Claimant had been previously disciplined for failing to conduct a pre-trip inspection in 2005, for which he was suspended 270 days. That suspension, notes the Carrier, was subsequently reduced to 180 days.
The problem with the Carrier's argument is that the charge against the Claimant related to his operating a vehicle with an expired annual inspection. The incident to which the Carrier refers was the subject of the letter dated October 29, 2008. The Hearing Officer, during the course of the Investigation, characterized that letter as a disciplinary action. While it was discussed at the Investigation, we cannot consider the October 29, 2008 incident to be the basis for the suspension that is now before the Board. To do so would effectively extend the scope of the Investigation beyond the Notice of Charge, as well as subject the Claimant to double jeopardy.
The Carrier's Submission does not address that portion of the Investigation covered by the Notice of Charge. Neither did the Carrier's denial of the claim. The transcript, at best, is inconclusive as to whether the Claimant violated any Rule. Further, we note that the Organization has asserted that other employees operated the same vehicle, but were not treated in the same manner as the Claimant. The Carrier offered no explanation for this disparate treatment. We must conclude, in the absence of any argument supporting the discipline, that the Carrier has not met its burden of proof. The discipline, therefore, was unwarranted and must be rescinded. Form 1 Award No. 41467
Turning to the Claimant's dismissal, it is evident that the Carrier determined that the Claimant was in violation of its Rules because he had been disciplined seven times for working unsafely or creating an unsafe environment for his fellow workers. In its argument before the Board, the Carrier also noted that the Claimant had incurred eight on-duty injuries during his 11 years of employment. The Carrier compared the Claimant's safety failure rate with the employee above him and the employee below him on the seniority roster. It concluded that they both had significantly lower safety failure rates.
While the Board, as have other arbitral panels in the railroad industry, has regularly upheld a carrier's right to discipline employees for excessive injuries, we must base our findings upon whether the Carrier has proven its charge against the Claimant. That charge referred to seven prior disciplinary actions, not to personal injuries. As we noted above, the Carrier may not expand the scope of the Investigation beyond the Notice of Charge.
Although the Investigation established that the Claimant had been disciplined on seven previous occasions, the record does not show that those actions were related to the Claimant working unsafely or creating an unsafe work environment. Even if they did, we cannot agree that it would be appropriate for the Carrier to discipline an employee based solely upon his having been disciplined too many times. Aside from the obvious double jeopardy implications, such a practice would not be consistent with the principle of progressive discipline, where an employee receives progressively more severe discipline for each violation until the ultimate discipline of dismissal. The assumption is that each disciplinary action is supported by its own proven Rule violation. Here, the Carrier may have proven that the Claimant had violated its Rules in the past, but the disciplinary record itself does not establish a separate Rule violation.
Notwithstanding this, we are troubled by the Carrier's use of the safety records of only two employees as a comparison with the Claimant's record to determine that he was an unsafe employee. The Organization cited numerous decisions of this Division, authored by distinguished Referees, holding such a practice inappropriate. See, for instance, Third Division Awards 28917 (John C. Fletcher) 30559 and 30560 (M. David Vaughn) 30747 (Martin H. Malin) 32430 (Hyman Cohen) 32548 (.John H. Abernathy) and 32773 (Richard R. Kasher). Form 1 Award No. 41467
Finding that the Carrier failed to meet its burden of proof in either Investigation, we must sustain the claim herein and direct that the Claimant be reinstated to service pursuant to Rule 25, Section 4 of the parties' Agreement.
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.