PUBLIC
LAW BOARD NO.
5495
JOHN C. I7.ETCHER, CHAHU4AN & NEUTRAL MEMBER
J.
s.
GnsBUNS, CARRIER MEMBER
R. A. LAU, ORGANIZATION MEMBER
BROTHERHOOD
OF
MAINTENANCE
OF
WAY EMPLOYEES
and
ILLINOIS CENTRAL RAILROAD
Award No. 2
Case No. 2
Hearing Date - December 2, 1994
Date of Decision - January95, 1995
Statement of Claim:
Claim of the System Committee of the Brotherhood that:
1) The dismissal of Trackman Wendell Golston was without
just and sufficient cause and in violation of the Agreement.
(Organization File - Case No. 240 MofW;.Carrier File 134-296-3 Spl.)
2) Trackman Wendell Golston shall now be reinstated to
service and he shall be made whole in accordance with Rule 33(1)
of the Agreement.
FINDINGS:
Public Law Board No. 5495, upon the whole record and all of the
evidence, finds and holds that the Employee(s) and Carrier(s) are employee -
and carrier within the meaning of the Railway Labor Act, as amended, and
that the Board has jurisdiction over the dispute(s) herein and that the parties
to the dispute(s) were given due notice of the hearing thereon and did
participate therein.
On July 21, 1994, Trackman Wendell Golston was cited to attend an
investigation on a charge that he had provided false and/or misleading
information regarding the extent of a an injury sustained on June 1, 1994, and
that on June 23, 1994 he made unauthorized use of Carrier's credit when he
obtained certain medical services. At the investigation held on August 19,
1994, Mr. Golston was determined to be guilty of the false and misleading
information charge, but was determined to be not guilty of the charge
concerning use of Carrier's credit to obtain medical services. The discipline
assessed on the false and misleading information charge was dismissal.
PLB-5495 - BMWE - IC
Case No. 2
Award No. 2
The Board has reviewed the investigation transcript
and concludes that
while it has been established that Golston was duplicitous and misleading with
respect to information concerning his physical abilities, Carrier's attempts to
develop this conclusion at his investigation' were not accomplished correctly.
The transcript of the investigation is replete with instances where the
questions asked by the Hearing Officer were leading and conclusionary, i n
actuality a manifestation of notions of preconceived guilt, as opposed to
objectively developing the facts surrounding the charges. The Board
acknowledges that railroad investigation hearings are not the same as
criminal trials and that procedures applicable to criminal trials to not obtain.
However, investigations must be conducted in a fashion that insures
objectivity.
Further, the Board is concerned with the discipline assessed. Dismissal
seems inappropriate in the circumstances. Accordingly, the Board will order
that the dismissal be converted to a disciplinary suspension equal to the time
Claimant has been out of service. Carrier is directed to request that Claimant
present himself for a return to work physical, in accordance with its return to
work practices, and if it is determined that Claimant is physically able to
resume work as a trackman, then he shall be restored to service, with full
seniority and fringe benefits, but without compensation for time lost.
AWARD
Claim sustained, as provided above.
ORDER
Carrier is ordered to comply with this Award and restore Wendell
Golston to service, as provided above, within thirty days of the date indicated
below.
John C. tche , Chairman & Neutral Member
gzr.~-
/~ -1-1
R. A. Lau, Eniployee Member
.rso~
J. . ibbins, Carrier Member
Dated at Mount Prospect, Illinois, January, 1995
Page No. 2