PUBLIC BOARD No.6993 CUe No.5
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AMERICAN TRAIN DISPATCHERS ASSOCJATION )
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CSX TRANSPORTATION, INC. )
came, fife:78218
Clanrtant A. R. Klainsek
C.R. Mundy, li1ember desig,lated·by ATDA
J.fCRmtzalc, Memberdesignated by CSX
PARTIES
TO DISPUTE
LS.Kohn. Esq.., Neutral Member and Chair appointed by National Mediation Board
STATEMENT QE CLAIM;
"TheOrganization requests that the claimant be exonerated of aa charges. compensated tor any time lost. aswell as for any overtime [towhichJ he may have been emitted* andhis pen;onaf recordbeclearedof anyand air entries
regarding this investigation "
BACKGRQUNQ:
The Claimant was hfredas a Train Dispatcher on August 26,1996•. Byletterdated May 26.2005.the Claimant was noti.Jied of a formal: investigationinto charges that.as stated in the letter.
You.are charged wi1h faiitJre to properJy protect signal man n.A. Chm in the Stepettnsport.
{sic) bklck at or about. 1128 hours, Wednesday, , 2$, 2005 and any and all
ciroumstances related thereto.
Theinvestigation was conducted on June 2, 2005. By letter datedJune 13.2005, the Carrier notified the Claimant that he was assessed a thirty-day actual suspension basedupon the foRowingdetermination:
CompanyymK owntestimony andevidence presentedsupported thechargesthat yQU tailed to prow:te propet protection tor signalman o A. Chin When you Issued and protected mm in a block· he did not request. Fortunately, no incident resulted tmm your
actions.but tt1Ql does not reduce the severity of the vidatlon!i or the potential catastrophic results. The rules violated by}IOU. Inth!$ action are Operating Rules 420 ($tel) 5}.424, and 526.
The Organizationappealed. When the parties were unable to resolve the matter. the dispute was presented to this Board on April20, 2007 at the offices of the National Railroad Adjustment Board Chicago, tltinois. The Claimant did not attend the appeal hearing.
PLB No. 6993, ca.. No.5
Page 2.
1he events of May 25, 200S are notin dispute: At 11:28 a.m•• the Claimant issued track protection to Signalman O. A. Chin on the SkilJmanJlewisJ>on bfocks ot the LH&STL Subdivision of the Louisville DMsion,as he had on the two previous days. However. on May 25, Chin had requested track protection for the 6'5iQman/SJIAl;uuiQort blocks.and
Chin repeated back to the Claimant and worked under assumed protection for the
Skiffman/Stephensport blocks. rnfact, Chinwas not underprotection in the Stephensport
block that day. There was no acok:fentorInjury as a result of th& Claimant's. error Upon having the error pointed out. the Claimant immediately acknowledged the em:ir and aecepted responsibility for it.
The Organization objects to the discipline on both proceduraf and substantive grounds. The Claimant's due pt"OOes& right& were viofated and his ability to prepare a deffmseimpermissibly impaired, the Organization contends, because the Carrier faiecHo identify any Operating Rules that the Claimant allegedly violated either in the notice ot
investigation,orduring the investigation hearingon the property• .For this reason atonethe appealshould be sustained. On the merits,the O,gamzatmasserts that the discipline violates the t998 mdividuaJ Oev$topment & Personal Ac;countabiftly Policy ("tDPAP").the parti• governingcollaborative document. and that the Carrier erred inrelyinginsteadon either its 2001 Ute.Critical Rules policy, or its 2005 IOPAP, both unilaterally adoptedin conflict with the 1998 IOPAP. The Organization also asserts that the 30-day actual suspension was excessive. The Claimant has an otherwi• clear recofd. Because the Claimant's alleged offense was at most a Minor Offense under the 1998 IOPAP. the appropriate corrective action should have been determmedin consuftation with the Organization's GeneralChairman or cfesignee·to determine corrective action Even a it were a Serious Offen&& under the 1998 tOPAP,.the Claimant should have beenallowed to elect between Option A and OptionB of that pofier. Theviolates the principle$ of fair, appropriateand progressivediscipline.and waaan arbitrary andcapricious.penalty for a first offense, the Organization concludes.
The carrier raises ifs own procedural objection.that th& appealto this Board must be dismissed because it was not Instituted within nine months trom the date of the appetfate decisiorl of ifs highest designated officer.as required by Article 13 (c) of the CQJfective Bargaining.Agreement.The Organization'soriginalrequestwithinthenine-month
deadline was to refer the dispute to a different Public law Board, but that Board was closedwithinafew monthswithoutthe additionof this case andwfthout any request for an
extension of time. In response to the Organization's objectiontothe lackof mentionof the Rulesin the charge and discipline letters.. the Carrier contends that the charge letter sufficiently informed the Claimant and, his representatives of the charges against him to enablethemto defend himself at the investigation. Concerningttie Oganizatiop'sprote&t of Inclusion of Rules not cited in the charge letter or reviewedin theinvestigation, safety
issues require no citation of rules because they invotve basic employee obligations. the Carriercontends The measure of tfiscipfinewas just and consistentwith the 2006 IDPAP, which properly superceded the 1998 IOPAP andinco,porated the 2001 life-Critical Rule& poffcy. The Claimant committed a Major Offense forwhich hewas. subjectto discipline up to andincfuding dismissal from seMCe for asingleoccurrence,"accordingto the Carrier.
PLB No. 6993,Case No, 5
Page 3
flNJ)lf59 ABQ QECISIQtt
This Board upon the whole record and alt the evidence,finds that the Carrier and employees involvedin this dispute are respectively a Came,: and employees within the meaningof the Railway Labor Ad, asamended andthatthe BQard hasjurisdictionof the dispute here involved.
The Baaedfinds tttat the earnersprocedural objectionis with<>ut merit. Although the Organwc11's n,temd tol!1!I8oard (PLB6993)didnotoccur within nine month of the highest designated officefs decision1 the Carrier was not prejudiced, because the Organizationts referral to the now-closed PLS6813was madeina·timelyfashion. Section 13 (c) provides that the decision of the HOO shallbe final and binding
...unless within nine months from.the date said officer's decision ismailed to the employee or his representative such claim Is disposed of on the properfy or proceedings for the finaldisposition of theclaimate institutedby the employee o[r)hisduty authorized representative before atribunalhaving jurisdiction pursuant to,taw o, agreementof the claim or grievanceinvolved and such officer is $0 notified.
The HOO was notified of the referral to now-defunct PLB 6813 Within nine months as required by Section 13(c).putting the Carrier on notice of the Organization's intentiOn to proeeed. There was no prejudice to the Carrier.. Under thes& circumstances there is no procedural reason to dismiss the daim.
Noris there merit to the OrganizatiOn's objection to the late d&livery of the charge fetter. Affhough the Claimant dl'dnot rece ve thecharge rettenmtil after the investigation. it was mailed and deliver, was attempted in a timely fashion. ft was the Cfa:imanfs apparent delay in claiming the letter,rather than derelictlon on the earners part, that preventedactualreceipt of thefetter untif after thehearing. fnaddition,the delayed receipt of the fetter <ffd not prevent the·Cfaimant's attendance nor his saf.f--defense at the hearing.
For these reasons the defayed recetpt Qf the charge fetter does not watrant granting the...
appeal.
However, the Claimant was denied his due process rights because he was not
advised of the Operating Rules in issue untilhe received the detemdnation letter citing tnose Rules.In PLB6993.Case No. 3,this Boardfoundthat acnarge tetterwas sufficient
to put the claimant and her representative on notice of the chatges against her (overlappingblocks) andto enablethemto prepareadefense.However,in that case,the Carner did not cite any Rules after the fact in the determination fetter fn this case, however,the Cacrier determined that the Claimant hadviolated SJ)eCJfic Operating Rules that were not cited or provided to the Cfaimant either in the charge letter or at the
invegtigation.
One essentialelement of just cause* is proof by substantial evidence that the empk)yee, Violated the Carrier's rule or rules as determioe(I by the Carrier. As was explainedin NRAS First Division Award No.26.295.
PLB No. 6993, case No. 5
Page 4
Itstands to reasonthat aviolation cannotbeprovenif the existenceof a rute has not been proven. That proof must be presented at theInvestigation. To findsuch proof. we must Jook.to th•transcript. Just astheOrgantzatiQnmay not defend anemployee with evidence not proffered at the Investigation,so
may not the Carrierdisciplne an employee on the basis Qf something other
than what is contained in the recoJTJ• . • •
fn QUr review of the record before the Board. W& find that th& Rule$ retied upon by the Carrier were neither QUOted in the ln¥e$tigation nor attached to the transcript• • • .A mere citation of the Rufeby number Is not sufficient • • .
The First OMSion in Awam No. 26295 cooeluded that without the text of the rules in the investigative record before it,. it could not determine if the rules had beenviolated. That Boan:! found that the Carrier hadfailed to establish the Claimant's guilt,and rescindedthe clisciptine.
We reach the same concfusion here. Operating Rules 420 (step 5), 424,and 526 arelisted by number in the determination letter. but the Rules were not speciflcaJty .cited at any time during the investigation,nor waa the substanee of any of the Rules made a
part of the recom of itlvestlgatiol'! itself. As we obseMRf in PlB 6993.Case No.3,Train
Dispatchers must beprepared inan investigation of a safety-related incident to show that they haveensuredthe sate passage of trainsand employees intheirjurisdiction as·abasic element.of theirjQb,even without citationof a particular Rufe. However, if :the Carrier reles on paf'titiulat Rules to determine an empk>yee',9 guilt and assess discipline then the employee shQuld also have the opportunity at some point during that .investigation to addlt!SS .the application of those Rules. That isimpossible when theapplicable Ruare not identified until after theinvestigation reco,dhas been closed.. Moreimportant without the Rulesthemselvesin the record. we as a Boardcannot determine whether they have
beenviolated. Likethe First OMsJoninAward No 26295.we mustfindthat theearner bas
tailed to establishthe Claimant's guilt.and rescindthe disciptine. fn fight of this ftnding.it
is unnecessary to address the Organization's other arguments.
AWAAD
The dam. is sustained. The ctafmant is to be exonerated of all charges. compensated tor any time tost;as weD as tor any overtime to which he may have been entitled. and hs personat record shaff be cleared of any and atl entries regarding this investigation,
,,.;_ _/
Usa SafkovitZ Kohn
Neutral Member
Organizatioo Member
?- 18--0,