Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD

THIRD DIVISION

Award No. 42944 Docket No. SG-43708 18-3-NRAB-00003-160527

The Third Division consisted of the regular members and in addition Referee Peter R. Meyers when award was rendered.

(Brotherhood of Railroad Signalmen PARTIES TO DISPUTE: (

(CSX Transportation, Inc.

STATEMENT OF CLAIM:

"Claim on behalf of the General Committee of the Brotherhood that:

Claim on behalf of D.P. Cisowski, for reinstatement to his former position with seniority and benefits unimpaired, compensation for all time lost, including overtime, and any mention of this matter removed from his personal record, account Carrier violated the current Signalmen's Agreement, particularly Rule 55, when it issued the harsh and excessive discipline of dismissal to the Clamant without providing him a fair and impartial Investigation and without meeting its burden of proving the charges in connection with an Investigation held on May 12, 2015. Carrier's File No. 2015-190847. General Chairman's File No. 15-70-CD. BRS File Case No. 15461-C&O(CD)."

FINDINGS:

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.

Parties to said dispute were given due notice of hearing thereon.

By notice dated April 20, 2015, the Claimant was directed to attend a formal hearing on charges that the Claimant had violated Carrier rules when he allegedly had failed to promptly notify his manager that his driver's license was suspended on November 8, 2014; that during the period from November 8, 2014, through April 12, 2015, the Claimant allegedly drove his Carrier vehicle with a suspended license; and that the Claimant allegedly was dishonest during Safety Certification in January 2015 when he signed a document indicating that his driver's license was in good standing. The Investigation was conducted, after a postponement, on May 12, 2015. By letter dated May 27, 2015, the Claimant was notified that as a result of the hearing, he had been found guilty as charged and was being dismissed from the Carrier's service. The Organization thereafter filed a claim on the Claimant's behalf, challenging the Carrier's decision to discipline him. The Carrier denied the claim.

The Carrier contends that the instant claim should be denied in its entirety because the Claimant was afforded a fair and impartial Investigation, because substantial evidence establishes that the Claimant is guilty as charged, and because the discipline imposed was warranted and in conformance with the Carrier's policies. The Organization contends that the instant claim should be sustained in its entirety because the Carrier failed to afford the Claimant a fair and impartial Investigation, because the Carrier has failed to meet its burden of proving that the Clamant was guilty as charged, and because the discipline imposed was harsh and excessive.

The parties being unable to resolve their dispute, this matter came before the Board.

The Board has reviewed the procedural arguments raised by the Organization, and we find them to be without merit. The record reveals that the Claimant was guaranteed all of his due process rights throughout the proceeding.

The Board has reviewed the evidence and testimony in this case, and we find that there is sufficient evidence in the record to support the finding that the Claimant was guilty of violating several Carrier rules when he failed to inform the Carrier that his CDL had been suspended for failure to pay a previous citation. The Carrier properly presented documentation that the Claimant's driver's license had been suspended and that the Claimant had driven for the Carrier for approximately five months without a valid driver's license. The Claimant's actions were clearly in violation of the rules and subjected the Carrier to possible problems if in fact he would have been in an accident or involved in some other traffic violation.

Once the Board has determined that there is sufficient evidence in the record to support the guilty finding, we next turn our attention to the type of discipline imposed. The Board will not set aside a Carrier's imposition of discipline unless we find its actions to have been unreasonable, arbitrary, or capricious.

The Claimant in this case was guilty of a serious violation. However, the record reveals that there are several mitigating factors which makes it clear that this 20-year employee should not have been terminated for this offense. This Board finds that the Carrier did act unreasonably, arbitrarily, and capriciously when it terminated the Claimant for this violation. Therefore, we order that the Claimant be reinstated to service, but without back pay. The period of time that the Claimant was off work shall be considered a lengthy disciplinary suspension for his wrongdoing.

The claim is sustained in part and denied in part. The Claimant shall be reinstated to service, but without back pay. The period of time that the Claimant was off work shall be considered a lengthy disciplinary suspension.

AWARD

Claim sustained in accordance with the Findings.

ORDER

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.

NATIONAL RAILROAD ADJUSTMENT BOARD By Order of Third Division

Dated at Chicago, Illinois, this 14th day of February 2018.