Did the Carrier comply with Rule 25 of the Agreement when it charged K. D. Ganntt with violation of Operating Rules - General Rule A, General Regulations GR-2, GR-3 and GR16 and CSX Safeway Rule GS-l and was substantial evidence adduced at the Investigation on May 15, 2012, to prove the charges; and was the discipline assessed in the form of a 45 day suspension 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 arguments. It argued the Claimant was denied a "fair and impartial" Investigation because Claimant was suspended prior to the Hearing. As previously stated in Award Nos. l and 7 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 the Investigation. The Organization her objected to the Claimant's disciplinary record being attached to the transcript of the Hearing as it might prejudice the disciplinary decision maker. Many Boards (See as an example: Third Division Award No. 28932) have decided that the introduction of an employee's record at the end of the Hearing, for the sole purpose of determining the appropriate degree of discipline, if any, is not prejudicial. In this instance there is no showing that the Claimant was prejudiced by Carrier's actions. 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 3, 2012, Claimant was directed to attend a formal Investigation on May 14, 2012, which was mutually postponed until May 15, 2012, concerning in pertinent part the following charge:
On June 4, 2012, Claimant was notified that he had been found guilty as charged and was assessed discipline in the form of 45 actual calendar day suspension. On June 19, 2012, the Claimant requested expedited handling of his case as provided for in Appendix (N) Expedited Discipline Agreement of June 1, 1999 BMWEICSXT Agreement.
e facts indicate that the incident in dispute occurred on April 24, 2012, near the end of the workday when Claimant and other crew members were tying up and putting away their equipment and tools. Claimant's Foreman, Mr. Williams attempted to get Claimant's attention as he approached him. The Carrier asserted the Foreman was walking toward the Claimant while calling out his name. According to it, the Claimant heard the Foreman calling his name and he looked at the Foreman, smiled, and quickly ran/skipped away from the Foreman. It her argued the Foreman ran after the Claimant in a playful manner, and pulled his groin muscle while running after the Claimant. Both employees were charged with engaging in horseplay.
The Organization's version of the same incident was different. It argued that the Claimant never heard Foreman Williams calling him and instead asserted that the Claimant suddenly noticed Williams approaching him quickly, and he stepped out of the way because Foreman Williams was too close and because the Claimant was unsure of Foreman Williams intentions at that moment. It suggested that Foreman Williams hurt himself when he made a few quick steps towards the Claimant and there was no horseplay involved.
On pages 4 and 5 of the transcript, Manager System Production on TI tie team, C. McCauley was questioned about the incident as follows:
the event is not particularly helped by the statement from co-worker A. Melton that lends credence to the argument that Foreman Williams and Claimant were playing around as he stated in part: "...Mr. KT [the Foreman] was approaching my truck also an he called Gantt name (smiling). Then made a quick break or (lunged) at Ganntt, just a few steps, Gantt stepped back quickly, KT grabbed his thigh. There was about 10 or 15 ft. between the two." Melton was standing close to the Claimant and he confirmed that the Claimant heard Foreman Williams and Williams approached Claimant in a friendly manner and Claimant was not suddenly surprised by the Foreman's approach. Claimant's colorization of the incident is not 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. At the time of the incident the Claimant had 30 plus years of service. Under the Carrier's Disciplinary Policy "horseplay" has been considered a major rule violation and has been prohibited because of the potential accidental harm to the participants or others. Prior to this event the Claimant had three counseling sessions and four serious level violations in the previous five plus years with one of the counseling sessions approximately two months before the incident under investigation. The level of discipline assessed was not arbitrary, excessive or capricious and was in accordance with the Carrier's Progressive Discipline Policy. The discipline will not be set aside and the appeal/claim is denied.
