AWARD NO. 45
NMB CASE NO. 45
UNION CASE NO. D70104807
COMPANY CASE NO. 2008-000205
PUBLIC LAW BOARD NO. 7008
BROTHERHOOD OF MAINTENANCE OF
WAY EMPLOYEES' DIVISION Affiliated with
the Teamsters Rail Conference
and -
CSX TRANSPORTATION, INi
STATEMENT OF CLAIM:
In accordance with the provisions of Rule 25, Section 3, of the CSXT/BMWED Agreement,
dated June 1, 1999, the following will serve as our appeal of discipline assessed to CSXT
employee E. L. Williams ID#* * * *, as a result of the hearing held on November 21, 2007, at
Wildwood, FL.
For the reasons stated herein and the objections raised prior to, and at the beginning of the
hearing, it is respectfully requested that the charge letter dated October 15, 2007, and all
matters related thereto, be removed from Mr. Williams personal file and he shall be made
whole for all losses suffered as a result of the Carrier's actions.
OPINION OF BOARD:
Track Inspector E. L. Williams (hereinafter referred to as "Claimant" or Mr. Williams) was
hired by Carrier on September 26, 2005. At all times relevant to this issue, the Claimant was
assigned to Track Inspector position 6Al 1-069, headquartered at Wildwood, FL.
On September 5, 2007, the Claimant informed his supervisor, Roadmaster D. D. Simmons,
Jr., that the State of Florida had suspended his driver's license. After discussing the issue, the
Roadmaster allowed the Claimant to "remedy the situation" and take appropriate steps to revalidate
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his driving privileges. On September 7, 2007, the Claimant provided his supervisor with a copy of
a valid drivers license, reissued by the State of Florida.
Approximately three (3) weeks later, on September 25, 2007, Claimant Williams informed
Roadmaster Simmons he received a warrant for his arrest. The following day, September 26, 2007,
the Roadmaster received a telephone call from the Claimant's mother, who reported that the
Claimant had been sentenced to 119 days in jail for driving without a driver's license, a "violation
of his probation". As a result of his incarceration, the Claimant has not worked since September
25, 2007.
On October 15, 2007, Carrier informed Mr. Williams that:
"Your name had been officially removed from all BIyIWED rosters for failure to
comply with Rule 26 -ABSENT WITHOUT PERMISSION. This rule states that (b)
except,for sickness or disability, or under circumstances beyond his control, an
employee who is absent in excess offourteen (14) consecutive days without notifying
his supervisor or proper Carrier official will fbrfeit all seniority under this
agreement. Your supervisor has indicated that on September 26, 2007 your mother
called in to say that you would not be at work due to your being incarcerated in the
Hernando County Jail for a period of]] 9 days. Further investigation reveals that
this absence has not been granted by your supervisor. Based upon this information,
you have forfeited your seniority under Rule 26".
In a second letter, also dated October 15, 2007, the Claimant was instructed to attend a formal
investigation, to be held October 25, 2007 and charged with:
"...conduct unbecoming an employee
of
CSXT and operating a CSXT vehicle without
a valid driver's license. It appears thatyou are in violation of but not limited to CSX
Operating Rules- Rule A, GR-1, GR-2, GR-2A, GR-3 and CSX Safeway General
Safety Rules-GS-1 ".
Following two (2) postponements at the request of the Organization, the investigation was
held on November 21, 2007 with Claimant's representative in attendance, but without the Claimant
present due to his incarceration. At the outset, the Organization protested the Carrier's decision to
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proceed with the investigation with the Claimant in absentia. When Carrier refused to postpone the
investigation for a third
(3`d)
time, BMWE Vice Chairman Trawick left the hearing "in protest".
Subsequent to the Vice Chairman's departure, the Carrier proceeded with the investigation, which
was held to its conclusion.
Thereafter, by letter dated December 10, 2007, the Claimant was informed that:
"In Mr. Jim Howell's letter of charges, dated October 15, 2007, and subsequent
postponement letters, last dated November 6, 2007, your were instructed to attend
a company investigation `to develop the facts and place your responsibility, if any,
in connection with information I received on September 26, 2007 from your mother,
that you were incarcerated in the Hernando County Jail for 119 days. It is alleged
that you were arrested for driving with a suspended or revoked license. In
connection with the above, you were charged with conduct unbecoming an employee
of CSXT, operating a CSXT vehicle without a valid driver's license and possible
violation of but not limited to CSX Operating Rules, Rule A, GRl, GR2, GR2A, GR3
and CSX Safeway General Safety Rule GSl. After careful review of the transcript
and exhibits of this investigation (copies attached) the facts support and confirm the
charges brought against you. Due to the seriousness of the charge, discipline
assessed in this case is your immediate dismissal from the service of CSX
Transportation and forfeiture of all rights and seniority. Arrange to return all
company material to Engineer Track J Howell ".
In a December 20, 2007 appeal to Carrier's decision, Vice Chairman Trawick argued:
"The hearing was conducted by the Carrier without the presence
of
the charged
employee on November 21, 2007, and by copy the letter received by the Organization
on December 13, 2007, Division Engineer R. Foster assessed the discipline of
dismissal from the service
of
CSX Transportation and forfeiture of all rights and
seniority. The Organization takes strong exception to the charges and discipline
issued in this case is due to the fact that charges were leveled and discipline assessed
without the presence of the charged employee's attendance at the hearing. The
Organization's attempts to confer with the charged employee prior to the hearing
were unsuccessful. The Organization on beha4fofthe charged employee did request
postponement of this hearing prior to the hearing. First
of
all, Rule 25(d)
of
the
Agreement has provisions to postpone a hearing for a reasonable amount of time at
the request of the company, the employee, or the union's representative. The request
was made prior to the hearing, but was denied by Ms. Mattingly, who then proceed
without Mr. William's or his union representative, therefbre denying the charged
employee his due process rights. Mr. William's was notprovided an opportunity to
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.face his accuser and was not afforded an opportunity to hear testimony for and
against him in connection with these charges. Mr. Williams was prejudged and
disciplined and was not afforded an opportunity to defend himself against the
charges leveled against him. Mr. Williams has worked for CSXT since 2005, and for
this amount of time and service, the Organization feels that the discipline of
immediate dismissal from service is harsh and forfeiture of all rights and seniority
is very harsh. Due to the level of discipline assessed, was all the more reason to
postpone this hearing to a later date as we requested. The Carrier simply charged
Mr. Williams, held the investigation without his attendance, and assessed the
discipline. In addition, we take strong exception to the fact that a postponement was
verbally requested prior to the hearing. The proper objection was made on the
record, at the beginning of the hearing, but the Carrier chose to proceed with the
Investigation over our objections ".
In its denial to the appeal, Carrier maintained that: 1) The Claimant was afforded a fair and
impartial hearing in accordance with the Agreement; 2)There was sufficient evidence from the
testimony and evidence presented at the hearing to support Carrier's position that the Claimant was
guilty as charged; and, 3) Given the severity of the Claimant's offense(s), the discipline of dismissal
was justified.
Further efforts between the Parties did not bring about resolution to this issue. Therefore,
the dispute was placed before the Board for final and binding adjudication.
At the outset, the Organization asserted that Carrier's refusal to postpone the November 21,
2007 hearing constituted a fatal "procedural deficiency", premised upon the "requirement" that
Carrier "permit all postponement requests". However, there is no language in the Agreement which
supports such an assertion, nor do we find the Carrier's refusal to grant the Organization's third
request for a postponement unreasonable in the circumstances.
Turning to the merits of the dispute, the Claimant was dismissed for violation of CSX
Transportation Operating Rules A, GRI, GR2, GR2A, GR3 and CSX Safeway General Safety Rule
GS I in connection with alleged conduct unbecoming an employee and operating a CSX Vehicle
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without a valid driver's license. Carrier maintained that there was sufficient evidence from the
testimony and evidence presented at the hearing to support its position, and that the Claimant was
guilty as charged. In the circumstances, we concur. Therefore, this claim must be denied.
AWARD
Claim denied.
r
Nanc ~ircloth Eischen, Chair
Uni Member _ J~ _ rat Co pany m r ~l~ Z
jpc~
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