Upon renew of the formal transcript of the tnvesngacion, it has been determined that you were in violation of General Rules "B" and "Q° on the day of Monday, December 7, 1992 when you were assigned to work as Gale Attendant, Van)3urea Sates, from 10:00
For these violations you are assessed Forty (403 days actual suspension. This suspension will begin ac 7:00 A.M., Thursday, December !7, 1992 and end at 7:00 A.M. on Tuesday, January 26, 1993.
13y letter dated December 18, 1992 (Org.1=xh. ?), the Organization's District Chairman notified the Carrier that he was sending the matter to the Organization's General Chairman for further appeal. 13y letter dated January 22, 1993 (Car. Exh. C), the Organization's General Chairman appealed the suspension. In that letter, the Organization stated the following:
The Organization can not make proper appeal on this claim, due to die fact that the Cagier failed to provide a transcript of the investigation. This leaves the Organization to wonder if the transcript of the investigation was adequately prepared as required by the Agreement between the Panes. Without such invesngaaoa and transcript of the iavesciganon, the Organization can not determine how any discipline was assessed to the Claimant.
PL5 5439, Award 10
J. Wells
Page 2
On December l6, 1992 the notice of discipline was sent via U.S. Mail and on December 17, 1992 a copy was band delivered and signed for by Claimant Wells. A copy of this letter was forwarded to Mr. F. Vandevyvere District Chairman, TCTr'. It is at thus point that a copy of the transcript is provided to both Claimant and to the representative in accordance with Rule 56(D) ...
If the transcript was not furnished to Mr. Vatidevyvere the "duly accredited representative" or the Claimant, which the Corporation decries, it was then each of their responsibility to bring it to Corporations [sic] attention. Both the Claimant and the Organization's representative knew of the notice of discipline dated December 16, 1992, and to now claim in your letter of January 22, 1993, that you are unable to snake proper appeal on this claim because of not receiving a copy of the transcript is without ment. The Corporation on December 17, 1992, provided all concerned with the required copy's [sic] of the notice of discipline and the trattscnpt. If this traescript had been tttisplaced by the Claimant or lost in the trail for the Representative, a simple request would have brought art immediare response from the Corporation to provide another copy of the =wcnpt as outlined in Rule 56(D). The Agreement does not provide a penalty far not supplying a uatuoript, if it should occur, nor does it overturn the decision of the Heating Officer. It is the responsibility for the Corporation to furnish a transcript to barb the Claimant and the Representative (which it did provide) and a tacit responsibility of the Claimant and the Representative to make known
With respect to the procedural question concerning the alleged failure of the Carrier to provide a copy of the transcript to the Organization, we are first faced with a question of fact which needs To be resolved. The Organization asserts that no transcript was provided and the Cattier contends the opposite . For purposes of analysis, the Organization's statement That no transcript was received as set forth in the General Chairman's letter of January 22, 1993 is a sufficient prima facie showing Thai no transcript was provided. That showing shifts the burden to the Carrier to demonstrate that the transcript was provided as the Carrier asserts. We fund that the Carrier has nor trade that demonstration.
First, the Carrier need not prove that the transcript was received. To rebut the Organization's prima facie showing, the Carrier only need produce some evidence beyond the plain assertion that it sent or otherwise timely provided the Organization with a copy of the Transcript. However, there is no statement or other evidence provided by the Carrier showing that the transcript was Transtnitred to the Organization as the Carrier alleges. No clerical employee or Carrier official with direct knowledge has demonstrated that, in fact, on the date in
PLB 5439, Award 10
1. Wells
Page 3
question a copy of the transcript was at least sent or otherwise provided To the Organization. Beyond the conclusiontype assertions made by the Carrier, no such affirmative evidence has been brought forth.
Second, and giving the Carrier the benefit of the doubt. ordinarily contrary factual assertions of the type facing us might well require a finding of fact adverse to the Organization's position. That is, the Organization has trade a factual assertion and the Carrier has denied that assertion. Under ordinary circumstances, the conflicting assertions may well require the Organization's position To be found nor substantiated because the burden is on die Organization to prove all the elements of the facts forming the basis of its procedural objection.
However, There is more here. The status of the analysis at this point is that the Carrier asserts that it provided the transcript. But The Carrier's letter of December 16, 1992 (Car. Exh. B) informing Claimant of the results of the investigation (with copy to the Organization's District Chairman) conmires no reference to an enclosure of The transcript. Thai omission tends to support the Organization's position that no transcript was provided! Further, this
t It is ordinary business practice to make reference to a letter to any enclosures that nught be provided along with a letter.
Board currently has two other discipline cases pending before it for resolution Case Nos. 6 and 9. In both of those case where discipline was imposed after investigation, the letter to the employee made specific reference to the fact that the Investigation transcript was enclosed. See Case No. 6, Car. Exh. B at 2 ("cc: ... w/copy of investigation"); Case No. 9, Car. Exh. B at 2 C'Enclosures: Copy of Investigation held ...."). Thus, it appears that when the Carrier provides a copy of the transcript of the investigation it duly notes That fact on the letter imposing discipline. In this case, that fact is nor found in The Carrier's letter of December 16,1992.
Therefore, given the Organization's assertion that it did not receive The Transcript coupled with The lack of specific evidence from the Carrier that the Transcript was sent or otherwise provided; the omission of any reference to forwarding the transcript to the Organization in the Carrier's December 16, 1992 letter and the fact that in the past the Carrier has trade such notations in similar letters, we are sufficiently saTisfied That the evidence sufficiently shows that the Carrier did not provide the Organization with a copy of the investigation uanscnpt.
PLB 5439, Award 10
J. Wells
Page 4
That provision is mandatory. ". . [A] copy of all transcripts and statements made a matter of record at au invesEigation shall be furnished ._.:' [emphasis addedl. The evidence shows that the Carrier did not do so. A violation of Rule 56(D) has been shown.
The Carrier's failure to provide the transcript in violation of Rule 56(D) requires a sustaining of the claim- See e.g., Third Division Award 3736; First Division Award 23930. By failing to provide the transcript as required by the Rule 56(D), the Organization was effectively precluded from preparing a proper appeal. By use of the word "shall" the patties made compliance with Rule 56(D) mandatory. We do not have the aurhoriry to change the provisions of that rule.
The Carrier's argument than it was incumbent upon the Organization to notify the Carrier that the transcript was not received (Car. Submission at 6) does not change the resnh. By its plain terms Rule 56(D) obligates the Carrier to provide the transcript. The rule does not provide for the Organization to ask for it.
We therefore cannot reach the merits. The claim will be sustained as presented. The suspension shall be rescinded and Claimant shall be made whole
R. L. Henry
Carrier Member
W. R. Miller
Organization Member