. PUBLIC LAW BOARD N0. 3542
Parties
to the
Dispute
Pennsylvania Federation Brotherhood of
Maintenance of Way Employes
Consolidated Rail Corporation
STATEMENT OF
CLAIM
(a) That S. Turner, Foreman, be restored to service with
seniority and all other privileges and benefits that are
a condition of employment either by agreement or practice.
That he be compensated for all time lost from the time
dismissed from all service of the Carrier.
(b) That his record be cleared of all charges brought
against him by the Carrier.
OPINION
OF THE
BOARD
Claimant S. Turner is a Foreman in Carrier's employ at Conway
Pennsylvania. On October 213, 1981,he was notified to appear at a
hearing on Nov=tuber 6, 1981 to answer the EoLlowing charges:
1. Violation of Rule
E
of the Rules oC the Transportation Department in that you were assuming -'
the attitude of sleep at approximately 4:30 a.m.
on October 24, 1981, while nn duty ac Conway, PA.
Violation of Rut(! D of the Rules of the Transportation Department during your tour oC duty
on October 23, 19131.
Case No. 26
Award No. 9
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3. Failure to perform the instructions issued
to you by J. B. Mascara, Assistant Supervisor
Track, for your tour of duty on October 23, 1981.
A hearing into the charges was held on November 6, 1981.
Claimant was not in attendance. The Organization contends that
Claimant never received the notice of hearing. -The record reveals,
however, that on November 4, 1981, Claimant was aware of the hearin3
date of November 6, 1981. Prior to and during the hearing, the
Organization requested that the hearing be postponed in order for
the Organization representative to locate Claimant and find out
why he did not appear. This request was denied and the hearing was
held as scheduled without Claimant in attendance. As a result of
that hearing, Claimant was found guilty as charged and dismissed
from Carrier's service.
This Board has carefully reviewed tho record of this cnse'and
must conclude that Carrier acted in a harsh and unnecessarily
one-sided manner when it denied the Organization's representatives -a
postponement of the November 6, 1981, hearin__ at which Claimant was
not in atteralance. It would like to -point out that in the strictest
and most technical sense of the work, Carrier had a right to proceed -
and no rule violation too!: place. Sound Libor relations, however,
S
would dictate that a postponement be granted.
This Board will be fir more crit:icaL of "hurry-up" hr=arin~s in
PLB No. 3542
Case
No. 26
Award No. 9
the future than it has been in this case. Under the Railway Labor
Act, Carrier is granted the right to hold disciplinary hearings.
It is responsible for ensuring objectivity in the hearing and establishing procedures that will be followed. Given this unique
system and the fact that Carrier controls the trial of employes
it has charged, it has a responsibility to make sure that the hearing
is fair and that all elements of due process are guaranteed to the
Claimant. The hearing must be technically fair, in accordance with
the Agreement, and must have the appearance -of fairness even to the
most unsophisticated observer. The hearing in the instant case fell
short of that obligation.
As to the merits of the case, there is no question that Claimant was sleeping on duty. This Board is fully aware that
sleeping
on the job is a major offense and that it is d=serving of serious
discipline. In every case, however, it is not deserving
or
i:laediate
dismissal from service. It is the
opinion of
this Board that Carrier
can male its point with a suspension equal to the time Claimant has
been held out of service. The WPM is d!roctin, thnr_ Claimant be
returned to work with seniority intact- but withuut pay fur lost time
or benefits. Claimant should be aware that any future behavior of
this type will most certuinly result in his parm2nent dismissal (rain
service.
PG,3
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y'
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AW aRD
Claimant shall within 30 days of the adoption of
this award be returned to service per opinion of
the Board.
R. E. Dennis, Neutral Member
J Dodd, rmplol·e Member '. . 'Vclil, Carrier Member