Did the Carrier comply with Rule 25 of the Agreement when it charged J. Thomas with violation of Operating Rules - General Rule A, General Regulations GR-2, I04-B, On-Track Worker Rules and Qualifications- Rule 720 and CSX Safeway Rule GS-3 and was substantial evidence adduced at the Investigation on May 22, 2012, to prove the charges; and was the discipline assessed in the form of permanent dismissal warranted?
Public Law Board No. 7529 finds and holds that Employee and Carrier are employee and carrier within the meaning of the Railway Labor Act, as amended; and, that the Board has jurisdiction over the discipline.
The Board has thoroughly reviewed the record and will first address the Organization's procedural argument. It argued the Claimant was denied a "fair and impartial" Investigation because Claimant was suspended prior to the Hearing. As previously stated in Award No. 1 of this Board countless arbitral tribunals have found that the Carrier has a right to withhold an employee from service prior to a Hearing in serious matters. The charges brought against the Claimant were of a serious nature and the Carrier did not violate the Agreement when it held the Claimant out of service prior to his Investigation. It is determined that the Carrier complied with Rule 25 of the Agreement and Claimant was afforded all of his "due process" Agreement rights.
On May 2, 1012, Claimant was directed to attend a formal Investigation on May 21, 2012, which was mutually postponed until May 22, 2012, concerning in pertinent part the following charge:
The record is clear that the Claimant was operating a Ballast Tamper when he ran through a switch without visually determining that switch was properly lined on April 23rd. The switch was damaged and took nearly 49 man-hours to replace, along with a cost of approximately $3,650.00 for parts. The following day, April 24th, Claimant operated the same machine. On that occasion the Claimant proceeded nearly a mile and a half without proper authorization. Claimant asserted in the first incident that the Foreman had told him that all the switches were properly lined and in the second incident he suggested that the instructions were unclear, but after review of all testimony and written statements neither argument is persuasive.
It is determined that substantial evidence was adduced at the Investigation that the Carrier met its burden of proof that Claimant was guilty as charged.
The only issue remaining is whether the discipline was appropriate. The Claimant committed serious infractions and the Board does not excuse his behavior, but finds and holds that the discipline was excessive and is reduced to a suspension. The Claimant is to be reinstated to service with seniority intact and all other rights unimpaired with no back-pay. The Claimant is also forewarned that upon reinstatement he should diligently adhere to all Carrier Rules and instructions as mistakes in the field can have catastrophic results.
Appeal partially sustained in accordance with the Findings and the Carrier is directed to make the Award effective on or before 30 days following the date the Award was signed.