PUBLIC
LAW BOARD NO. 7163
BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES
DIVISION - IBT RAIL CONFERENCE
AND
CSX TRANSPORTATION, INC.
Docket No. 102
Employee: P. Dillow
Neutral Member: Barbara Zausner
Carrier Member: Robert A. Paszta
Organization Member: Timothy W. Kreke
STATEMENT OF CLAIM
1- The discipline [removed from service beginning on October 22, 2009
and the November 24, 2009 letter assessing a thirty (30) day actual
suspension concluding at the close of business on December 4,
2009 and the immediate removal of his bridge tender seniority
(07/ 16 /02) from the appropriate rosters] imposed upon Mr. P.
Dillow, Jr. for alleged violation of CSX Transportation Operation
Rules - General Rules A and F, General Regulations GR-2(5); GR
3(3); GR-6; GR-14; GR-16 and CSXT Safeway General Safety Rule
GS-1 in connection with damage sustained to Bear Creek Swing
Bridge, Sparrows Point Branch, MP BAL 5.4, Bridge 5, Dundalk,
MD, on October 21, 2009 was arbitrary, capricious, unwarranted
and in violation of the Agreement. (System File D70877809 /2009
055347)
2- The Agreement was further violated when the Carrier failed to
provide copies of the transcript of November 10, 2009 hearing to
Mr. P. Dillow and his union representative as required by Rule 25(x.
3- As a consequence of the violation referenced in Parts (1) and/or (2)
above, Claimant P. Dillow, Jr. shall now have this discipline
removed from his record and compensated for all time lost, as well
Public Law Board No. 7163
Docket No. 102
as have all other rights and benefits restored that may have been
lost, as a result of this removal from service and discipline.
FINDINGS
Upon the whole record and on the evidence, the Board finds that
the parties herein are Carrier and Employer within the meaning of the
Railway Labor Act, as amended; that this Board has jurisdiction over the
dispute, and that the parties were given due notice of the hearing.
The Claimant was charged with failing to inspect the bridge as
required and failing to report or correct a hazardous condition. The
Carrier alleges he failed to notice damage to the bridge and failed to
report the damage for days. The Carrier maintains the Claimant's due
process rights were fully protected and the hearing was fair and
impartial.
In response to the Organization's procedural objections, the Carrier
maintains the charge is "reasonably exact considering the Claimant's job
exclusively involved operating the Bear Creek Swing Bridge." Its failure
to provide a copy of the transcript with the discipline letter is not a fatal
flaw. Once it learned of the oversight, the Carrier sent the transcripts to
the parties. The Carrier cites awards that stand for the proposition that
"technical violations are insufficient to nullify an entire disciplinary
proceeding absent a specific provision to this effect."
The Organization argues that the claim should be sustained in
light of the Carrier's failure to provide the Claimant with a transcript of
the hearing along with the disciplinary letter within the time limits of the
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Docket No. 102
rule. The charge letter finding the Claimant guilty as charged is dated
November 24, 2009 and was mailed certified mail, return receipt
requested. The letter concludes, "a copy of the transcript will be sent to
you under separate cover." On December 8, the Organization requested
a copy of the transcript, claiming it had not yet received one. On
December 11, more than twenty days had passed and the Organization
notified the Carrier that it was in violation of Rule 25(x. The Carrier
denied the claim by letter dated February 8, 2010 but provided no proof
that it had sent a copy of the transcript to the Organization or the
Claimant.
Rule 25
(f)
provides, "Notice of discipline must be given within
twenty (20) days following the close of the hearing. Copy of the
transcript shall be given to the employee and two (2) to his
representative." The Organization maintains the claim must be allowed
as presented in light of the Carrier's egregious violation and in order to
protect the integrity of the Agreement. Even if the Carrier mailed copies
of the transcript on December 15, it would not be in compliance with the
rule. By the time a transcript was received, the Claimant "had already
long since exhausted his on-property appeals concerning his
discipline..."
For reasons argued by the Organization, a majority of the Board
concludes that the Carrier violated the Agreement when it did not timely
provide the Claimant with a copy of the hearing transcript. The
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Docket No. 102
Organization offers numerous arbitration decisions holding that "when
time limits are breached the discipline must be set aside." Directly on
point is NRAB Third Division Award 3736, "When such decision is
rendered and action taken thereon ... it then becomes important for the
party affected and his representative to have a complete and correct
transcript of the proceedings upon which such decision is based in order
that they may determine what action ... they should take." "The absence
of either or both" violates the claimant's [due process] rights." The
holding in Award 18150 is similar.
In another similar matter, (Award 2, PL13 7115) the Carrier's failure
to provide a transcript in time for the Organization and Claimant to
fashion an appeal denied the Claimant's due process rights and
warranted overturning the Carrier's decision.
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Docket No. 102
AWARD
Claim sustained.
L~'
Barbara Zausner, Neutral Board Member
January 11, 2012
Robert A. Paszta, Carrier Member
Timothy W. Kre, Organization Member
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