On July 28, 2011, Claimant was found guilty as charged and was assessed a Level 3 discipline with an actual five day suspension.
It is the Organization's position that the Carrier violated the Claimant's contractual due process rights when it failed to timely hold the formal Investigation and failed to provide a fair and impartial hearing because the Carrier held the Investigation without the Claimant being present and the reason why he was not at the Hearing is because he was working out of town when the Notice of Investigation was sent. It asserted the Carrier did not make every effort to schedule and hold the Investigation within 15 days of the Claimant rejecting the Rule 22(g) waiver. It her argued that the Carrier did not meet its burden of proof. It concluded by requesting that the discipline be rescinded and the claim sustained as presented.
It is the position of the Carrier that there were no procedural errors in the handling of the case. Turning to the merits it argued that the testimony and evidence introduced at the Investigation showed that the Claimant was standing between the Main Line and # 1 Yard Track using his cell phone. The Claimant was fouling the track, which meant he was close enough in proximity to the track to be struck by a moving train or on-track equipment. The Claimant could have avoided that danger by stepping over the tracks, but chose not and instead was seen by multiple witnesses leaning against his machine, standing between the main and siding talking on his cell phone. It closed by asking that the discipline not be disturbed and the claim remain denied.
The Board will first address the Organization's procedural arguments. It initially argued that the Claimant was denied a "fair and impartial" Investigation because the Hearing was held in absentia. Many Awards have determined that because an Investigation was held absentia does not necessarily equate to being unfair. For example, in Second Division Award 13957 it was determined in pertinent part:
However, in Award 13957 the Board prefaced the aforementioned statement regarding the Claimant's conduct with the following finding-.
The question at issue in this case is whether or not the Claimant had a justifiable reason for not appearing at the Investigation. The Carrier argued it mailed a Notice of Investigation to the Claimant's last known address by certified mail and according to it that fulfilled its requirement to advise the Claimant as to when and where the Investigation would be held and it was his obligation to appear and when he did not appear it was within its right to hold the Hearing in his absence.
The Organization responded to the Carrier's argument by stating in its November 14, 2011, letter the following:
In its letter of May 11, 2012, the Organization her stated in pertinent part the following:
Review of the record reveals that the Organization's position was not refuted. Thus, it stands as fact that the Notice of Investigation was mailed when the Claimant was out of town working on a Carrier assignment. Additionally, the record was not refitted that the Claimant was working on the date of the Hearing. In Award 13957 discussed above, the Claimant never P.L.B. No. 6402
offered any reason for not appearing at the Hearing, whereas, in this incident the Organization offered a justifiable reason for the Claimant not appearing, that being he was in the field and on the job when the Notice was sent to his residence and was again on the job the day of the Investigation. In this instance based upon the unique facts of the case the Board is not persuaded that the Claimant was made aware of the formal Investigation in accordance with the Agreement. The record further indicates that the Hearing Officer did not make a reasonable effort to inquire as to the whereabouts of the Claimant or his representative when neither appeared for the Hearing. It is determined that there is not a sufficient showing that the Claimant was notified of his formal Investigation prior to the actual date of the Hearing, therefore, because of that fatal flaw the Board finds and holds that the discipline is rescinded and the claim is sustained in accordance with part 2 of the claim without consideration of the merits.
