"Claim of Fireman in Training (FIT) C.J. Gober, PID# 0298017, for time lost on account of attending investigation on January 29, 2004 and removal of bevel 4, with pay for all time lost. Claim includes payment for all wage equivalents to which entitled, with all medical, surgical, life and dental benefits, and for any monetary loss for such coverage while improperly disciplined."
The Claimant has been employed by the Carrier for almost five years. On March 27, 2003, he was dismissed for a Level 5 violation based on his failure to protect his job assignment, when he was dishonest with the CMS crew dispatcher in violation of Rule 1.8. In October 2003, the Carrier and the Organization agreed that the Claimant would fire reinstated without prejudice to his right to progress his claim for lost time. Included in the parties' written Agreement was the provision that "there must be a clear understanding of Mr. Gober's responsibilities with regard to job protection and absenteeism." On December 22, 2003, and January 4, 2004, the Claimant laid off without permission.
AWARD NO. 29
The hearing was postponed once at the request of the local chairman. The day before the date of the rescheduled hearing, the Claimant notified the Organization that due to his child's illness, he would be unable to attend the hearing. The local chairman contacted the Superintendent who requested that the local chairman provide documentation regarding the child's illness. The local chairman presented a memo at the hearing providing the child's name, tie child's doctor, the name of the hospital and the time of the surgery. The memo was signed by the Claimant. The Carrier took the position that since there was no letterhead on the memo and no other documentation regarding the child's illness, that it would proceed with the hearing investigation. After the investigation and hearings were held, the Claimant was issued a Notice of Discipline on February 4, 2004, stating as follows:
The Organization appealed the Level 4 discipline and upon failing to resolve the matter the parties submitted the dispute to this Board.
General Code of Operating Rule (GCOR) 1.13, entitled "Reporting and Complying with Instructions" states as follows:
The Carrier contends there is no basis for this Board to disturb the discipline assessed against the Claimant. Initially, it asserts that the Organization's claim is procedurally defective because it failed to hold a local. level conference pursuant to UTU Article C-1B. It notes that in the past, if a superintendent failed to hold a local level conference, the Organization took the position that the claim became valid and should be settled accordingly, pursuant to Article C-1f3. The Carrier argues that arbitral precedent supported the Organization's passion in this regard. It asserts that the earns
Additionally, it contends the Organization has failed to establish the existence of any procedural errors in the Carrier's handling of this case that warrant overturning the discipline assessed. It argues that the Organization's allegation that the Notice of Investigation was praeeduraliy defective because the Claimant was charged under the BLE Discipline Agreement is without merit, and in any event, "was a typographical error" that "in no way adversely impacted Claimant's ability to prepare and present a defense, nor did it violates Claimant's due process rights."
The Carrier also disputes the Organization's claim that the Carrier unreasonably refused to permit the Claimant to postpone the hearing due to his child's illness. Based on the Claimant's failure to provide sufficient documentation regarding his child's illness, Superintendent Crandall property denied the request. Finally, the Carrier rejects the Organization"s contention that Superintendent Crandall's failure to use the words "denied" or "declined" !n response to the lace! level discipline appeal constituted "a fate! procedure! defect." It is clear that the Organization understood the letter was a declination of the discipline appeal, based not only on the language of the letter itself but also upon the fact that the Organization appealed the Carrier's decision.
Additionally, the Carrier contends that it has provided substantial evidence that the Claimant violated GCOR 1.13 and 1.15. The testimony of MOP Billson clearly
herein was reasonable, use the Claimant was at a Level 3 and his misconduct constituted a Level 2 violation. Accordingly, this Level 2 violation warranted the assessment of a Level 4 discipline pursuant to the Carrier's UPGRADE Discipline Policy. Arbitration precedent has upheld progressive discipline for failure to comply with instructions. Additionally, the Carrier notes that "Claimant was given a second chance to ,comply with his supervisor's instructions to protect his student engineer assigned. He failed to do so." Thus, the Carrier requests that the claim be denied and that the discipline upheld.
The Organization lodges a procedural argument over the Carrrier's improper application of the progressive discipline rules. Specifically, it contends that the Carrier unilaterally determi that when the Claimant was reinstated In October 2003, that he should be returned to service at Level 3 status. The Organization argues that at no time did it agree that the Claimant be placed at Level 3, and that nowhere In the letter Agreement entered into by the parties does it indicate as much. Additionally, the Organization strenuously objects to the Carrier's citing to the BLE Discipline Agreement in the Notice of Charges. It asserts that the Fireman-in-Training agreements on the property have been continuously hand by rte Organization, and that the Carrier has a statutory duty to bargain with the Organization - not the BLE - concerning the terms and conditions of rte Firemen-in-Training, and that firemen do not fall under rte BLE Agreement until after they establish engineer seniority.
The Organization also seriously disputes the Carriers determination to proceed with the hearing in this matter without rte Claimant being present. It argues that the Claimant clearly presented valid mitigating circumstances concerning his inability to appear at the hearing. The Organization also presented to the Carrier the Information it requested be presented in order to support the request. for a postponement. The Organization asserts that the Carrier's conducting the hearing in absentia deprived the Claimant of due process and is "most disturbing and not fully understood."
As a result of the Claimant being absent from the hearing, the Organization contends that "too many questions remain unresolved." In any event, the Organization asserts that the Claimant called CMS, which gave him permission to lay off. It argues further that if Billson did not want to the Clairriant to lay off, he could have informed CMS "and that would have ended it." Accordingly, the Organization concludes that the Carder's position herein is "untenable" and that the claim must be sustained.
At the outset, the Board must address the Organization's procedural contention that the Carrier improperly cited to the BLE Discipline Agreement when it issued its Page
and the contentions of the parties, the undersigned conclude that the Carrier's limited reference to the BL.E Discipline Agreement in the Notice of Investigation constituted harmless error, and does not provide a basis for setting aside the discipline herein. It is clear factions of the parties that there was no misunderstanding or confusion as to which Organization was the certified representative representing the Claimant In this matter, nor any dispute as to which discipline rules were to be applied herein. However, the Board Is sensitive to the historical tension and confusion that exists regarding the representation of trainmen in this industry. The Carrier can avoid this issue and controversy by simply ensuring that it refers to the appropriate Organization rules and agreements when citing employees for rule violations.
However, the Board cannot overlook the other procedural irregularity cited by the Organization. As set forth above, the instant hearing and investigation took place bout the Claimant being. present. The Organization asserts that valid mitigating circunces were present that warranted a postponement of the January 29, 2003, hearing. The Carrier disagrees, contending that the Claimant's last-minute request for a postponement was unreasonable and that the documentation he presented was inadequate to justify the request.
The undersigned cannot sustain the Carrier's position. Although there is evidence reflecting that the Claimant indicated that due to his child's surgery he would be unavailable on January 28, 2004, it is not unreasonable that this personal circumstance may have also required the Claimant's presence and attention on January 29, 2004. It is also reasonable to conclude, given the nature of the medical circumstances involved, that a last minute request was unavoidable. Additionally, although the documentation provided by the Claimant was admittedly unofficial and lacking In detail, there is no evidence that it was not responsive to the Carrier's request.
It Is well-established that a fundamental component of a claimant's due process guarantee Is that he or she be provided a fair and impartial hearing. Although a Claimant can waive this right by engaging in certain dilatory and delaying tactics, there is no evidence that this occurred its the present case. The undersigned conclude that the Claimant ' provided sufficient mitigating reasons to support his request for a postponement, aril that the Canier's failure to grant the same was a violation of the Claimant's right to a fair and impartial investigation.
