Claim of Cansuctor J. E. Bell for removal. o£ UPGRADE Level 1 from his personal record with pay for all time lost including time spent. attending the :iw·estigdtiori, and payment for all wage equivalents to which entitled, with all Insurance benefits and any monetary loss for Such coverage while improperly diseipl£rlEd, and claim of Brakeman E. Rornigu,iere for reinstatement to service and removal of UPGRADE Level 2 (resulting in Level 5) from lain personal record with pay for all time lost, including time spent attending the investigation, and papnent for all wage equivalents to Which
The Carrier arid the Employees involved in this dispute are respectively Carrier and EmployB6s within the meaning of the Railway Labor Act, as 2rn;ended. This Eoard :sea jurisdiction of the dispute here involved. '
Claimants were summoned for formal investigation on a charge that they #-allegedly failed to perform proper air brake test as
required- on April, 9, 1998. Following the investigation Carrier found claimants at fault and assessed Level 3 discipline under the
UPGRADE DisGigll,n0 Policy. The Level 2 discipline assessed Glaima.nt Rcrniguicre was raised to Level 5 (dismissal from service) based on an asserted application of the progressive discipline
procedures Set forth in this discipline policy.
assessing discipline ware written by Carrier's General Manager Jeff T,, V'grhdal--riot by the carrier Officer mho conducted the investigation. The Organization argues that this evidence clearly supports its position that claimants were prejudged and therefore were not accorded the fair and impartial investigation guaranteed by the governing rule.
The Roard will here note Ltitxt the issue o£ rendering a decision in advance at r2vieuliric the. t:axiscript is not a new one tin this property, Tn fact, it is an issue which has been ruled upon on numerous occasions. For example, property Award No. 74s issued by Pub.liC Law Hoard. No. 4897, held:
noting oral presentation of the dispute to this Board Carrier stated that it is straw possible to E-Mail the transcript ffCxri tire paint of receipt. by Carrier to the location of the o££fcer who retrdared the decision. We tmabt here trots, however, that no evidence was submitted to verify that this 114 gage transcript, glue exaibitsr had actually been transmitted ay E-Mail.
In reviewing the evidence submitted in this dispute, tae Board notes that in his letter dated Auqus.t 39. 1998, appealing the decision of carrier's Superintendent and GQneral Manager. the General Chai.x"n~an raeasay stated therein that, ''Fir:a.lly, tt;e discipline was prematurely issued is Las Vegas an the same date the transcript was completed In Taws." It is the opinion of. this Board that when this issue eras xaise3 in August. Carrier could well have put the issue to rest by vffexirq evidence thaC: the tyansCriFrC had been sent via L-Mail, however, it did not do so and the Board is nor left with deciding whether or not Carrier's General Mana4ar rendered his. decisions without first reviewing the transcript of hearing,
Absence any evidence to the contrary. and based on the =aces of record before the Board, it is the findidg o_ this Board that there is considerable merit to this Organization objection and we raw find that urban the decision finding claimants at fault arid assessing disCigline was rendered prior to a review of the transcript it was an egregious error, sufficient to warrant a ruling` that claimants; did not sBCUrB the fair anti impartial hearing quarantead by the agreement: i.a.. the Carrier Officer who rendered the decision pre5ud9ed claimants ' in that he had no firsthand kncswled:7F o£ the proceedings prior to rendering the decisions.
With respect, to issue tea. 3 raised by the OrqanizatJon concerning alleged violation of the `Naive: a£ Hearing Agreement, the record before this Board is clear that Claimant Romiquiere was issued $ notice o£ proposed discipline, in accordance with the waiver of Hearing Agreement, and such. notice fixed the ^eepaired discipline at Level 4. The waiver o_ Hearing Agreement is specific in its requirements that if tiisciglive. is assessed following a formal hearfnq, such discipline "shall not BxCeed that originally proposed." increasing the discipline from rite of·EQred Level, d to Bevel 5 after the hearing was held was not in accordance with this. agreement provision. During the oral presentation of this dispute Carrier objected to inclusion of this issue contending that :!t was not sine raised during handling of this matter oa the property. The Board must note, however, that the Farm offering` Level 4 discipline was issued to claimant by a harrier officer, and the decision to raise this to i.avea 5,. following the investigation. was also made by a carrier officer. Tizerefore. the matter was known to Carrier daring local handling and ft cannot now be successful ly argued that this was new argument before this Board.