Case No. 5
PUBLIC LAW BOARD NO. 4823
PARTIES) THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY
TO ) versus
DISPUTE) BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYEES
STATEMENT OF CLAIM:
"l. The the Carrier's decision to remove New Mexico
Division Machine Operator B. C. Payne from service was
unjust.
2. That the Carrier now reinstate Claimant Payne with
seniority, vacation, all benefit rights unimpaired and pay
for all wage loss as a result of investigation held November
29, 1989, continuing forward and/or otherwise made whole,
because the carrier did not introduce substantial,
creditable (sic.) evidence that proved that the Claimant
violated the rules enumerated in their decision, and even if
Claimant violated the rules enumerated in the decision,
permanent removal from service Is extreme-and
harsh
discipline under the circumstances."
FINDINGS:
This Public Law Board No. 4823 finds that the parties
herein are Carrier and Employees within the meaning of the
Railway Labor Act, as amended, and that this Board has
jurisdiction.
On November 15, 1989, the claimant was notified of a
formal investigation to be held on November 29, 1989,
concerning a report that he failed to comply with
instructions issued by the Carrier's Medical Director in
violation of Rules, A, B, C, 1000, 1007, and 1020, Safety
and General Rules for all Employees.
The investigation was held as scheduled, but the
claimant did not attend.
Following the
investigation, he
was found responsible for violation of the rules cited in
the notice of investigation and was removed from service for
his responsibility in connection therewith.
The Employees contend that the claimant's removal from,
service was unjust, that the Carrier did not introduce
substantial, credible evidence that tie violated the rules
enumerated and, even if he violated the rules enumerated,
'~-Award No, 5, Page 2
permanent removal from service is extreme and harsh
discipline under the circumstances. ,
The claimant's failure to attend the investigation,
absent some evidence of mitigating circumstances Justifying
his absence, undermines the contentions of the Employees; it
is tantamount to a plea of no defense. In view of the
seriousness of the violation and after
a
thorough review of
the record before it, the Board finds that the claimant was
properly found in violation of the rules cited and that his
removal.from service was an appropriate measure of
discipline for his responsibility in connection therewith.
AWARD: Claim denied.
G. Michael Ga Mon, Chai man
Emp7`oyee Member
Carrier Member
Dated at Chicago, IL: