Public Law Board No. 7048, upon the whole record and all the evidence, finds and holds that Employee and Carrier are employee and carrier within the meaning of the Railway Labor Act, as amended; and that the Board has jurisdiction over the dispute herein; and that the parties to the dispute have participated in accordance to the Agreement that established the Board.
On August 3, 201(3, and August 5, 2010, (Corrected Notice) Claimant was directed to attend a formal Investigation on August 17, 2010, concerning in pertinent part the following charge:
(t is the Organization's position that the Claimant and the Organization were riot furnished a copy of the transcript in accordance with Rule l3(e) and because of that it was not allowed to make a thorough review of the transcript before it tiled its appeal wherein it could have minted out and we quote from its appeal letter of October 13, 201(), "...that the Claimant would have been exonerated of any alleged wrong doing.", therefore, according to the Organization that was a violation of (pule 13. Additionally, it argued the Claimant is a veteran employee with nearly 20 years of service and a good work record and even if the Carrier could produce evidence to support their charges, which it did not, the discipline was excessive in proportion to the allegations. It concluded by requesting that the discipline be rescinded and the claim be sustained as presented.
It is the position of the Carrier that the Investigation was fair and impartial. (n its December 9, 2010, letter of denial it addressed the Organization's allegation that it failed to provide a copy of the transcript to the Claimant and Organization as follows:
Turning to the merits the Carrier asserted that the testimony of the Claimant as well as all other witnesses verified there was an altercation between the Claimant and his co-worker Victor M. Andujo, therefore, Claimant was guilty as charged. (t closed by asking that the discipline not be disturbed.
On December 23, 2010, the Organization responded to the Carrier's offer to provide additional argument and/or evidence. It reiterated that the transcript was not provided in a timely manner pointing out that it was not furnished until 1 I l days after the conclusion of the Hearing. It also argued that the officer who rendered the discipline was not the 1-leaning Ofcer, but he was the same officer who suspended the Claimant earlier and withheld him from service thus he could not make an unbiased decision. It again risked that the discipline be set aside and the claim sustained.
The Board notes that this is a companion case to Award No. 6$ of Public Law Board No. 704$. The Board has thoroughly reviewed the transcript and record of evidence and will first address the Organization's procedural arguments. As previously stated in Award Nos. 66, 6$, 71 and 80 of this tribunal and based upon the unique facts of this case the Board has determined that the Carrier's offer to allow the Organization an additional opportunity to add new evidence and/or argument remedies the Carrier's failure to provide the transcript in a timely fashion. Additionally, the Organization argued that the disciplinary Officer could not make an unbiased decision because he suspended the Claimant from service prior to the Investigation. It is not uncommon in this industry for employees charged with serious offenses to be withheld firom service prior to a hearing. Claimant was charged with a serious offense and there has been no showing that his Investigation was not fair and impartial. The record reveals that the Claimant and Organization were not surprised by anything that arose during the hearing and the Claimant was well represented and both were given the opportunity to provide additional argument and/or evidence. The Investigation and appeal process tnet the guidelines of Rule l3(a) the Discipline Rule and Appendix No. 11.
The Carrier alleged that the Claimant violated Rule l.6 - Conduct and Rule 1.7 - Altercations. Review of all testimony offered by each of the witnesses reveals a constant theme, that being that there was a verbal altercation between the Claimant and V. M. Andujo that escalated to cursing, finger pointing by both employees with Andujo banging on Claimant's pickup door and stating that he would "kick his ass". At the Investigation Andujo appeared on crutches and stated that his injury and part of his anger was due to the fact that Claimant had closed the pickup door on his foot and hurt it. Whether or not that happened is unclear, however, neither employee had an excuse to enter into a escalated verbal altercation with threats. It is clear that substantial evidence was adduced at the Investigation that the Carrier met its burden of proof that Claimant was guilty as charged.
The only issue remaining is whether the discipline was appropriate. The Carrier has a legal obligation to provide a safe work place and in this instance it had a responsibility to correct the Claimant's behavior. The Carrier took into consideration that the Claimant had nearly 20 years of service when it assessed the suspension that was corrective in nature. The Board finds and holds that the discipline was in accordance with the Carrier's Policy for Employee P.L.B. No. 7048