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 April 4, 2011, Claimant was directed to attend a formal Investigation on April 19, 2011, which was mutually postponed until May 13, 2011, concerning in pertinent part the following charge:
On June 1, 2011, Claimant was notified that he had been found guilty as charged and was assessed a 30-Day Record Suspension with a one year probationary period.
It is the Organization's position that the Claimant was denied a "fair and impartial" Hearing because the Notice of Investigation listed the wrong location as there was no switch at the Milepost of the alleged incident. It her argued that the Carrier attempted to add a date to the charges during the Hearing and used witnesses that had no direct knowledge of what occurred March 28, 2011, and on that basis alone it asked that the claim be sustained. Lastly, it asserted that if the Board chose to examine the merits it would discover that the record reveals that the Carrier did not meet its burden of proof. It concluded by again requesting that the discipline be rescinded and the claim sustained as presented.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 involved in the handling of the Claimant's case and he was not denied a "fair and impartial" Investigation. It argued that the transcript indicates there was a routine Operations Testing on March 29, 2011, when it was determined that the Claimant had failed to document the Position of Switch Form on the previous day March 28th, while he performed service for the Carrier. It her argued that the violation occurred on March 28, 2011, and was discovered the following day, therefore, the charge was correct. It closed by asserting that the Claimant admitted to his error and it asked that the discipline not be disturbed and the claim remain denied.
The Board will next address the Organization's procedural arguments. The first argument questioned the factual validity of the charges as it suggested there was no switch at MP 942.5. On page 54 of the transcript the Claimant was questioned as follows:
The record shows that the Claimant did not dispute the Carrier's assertion that there was a switch at Mile Post 942.5. The Organization her argued that the Carrier attempted to expand the Notice of Investigation by adding another date (March 29, 2011 ) during the Hearing. That argument is not persuasive because it is clear that the Claimant was charged with not having filled out the Switch Position Form on March 28, 2011, which was discovered on March 29th, therefore, there was no showing that the Carrier attempted to alter the charges to include March 29, 2011. Additionally, the witnesses called by the Carrier appropriately testified as to what they discovered as Operation Testing Officers on March 29 regarding the prior date covered by the charges. It is also evident from a reading of the transcript that the Claimant and the Organization were not blindsided as they understood the charges and the Organization provided an able defense. The Board has thoroughly reviewed the transcript and record of evidence and is not persuaded by the Organization's procedural arguments and it is determined that the Investigation and appeal process met the guidelines of Rule 13(a) the Discipline Rule and Appendix No. 11.
Turning to the merits the Claimant was questioned on page 55 of the transcript as to whether he filled out the form on March 2$ when he was actually at the switch or on March 29 after the Ops Team approached him as follows:
Sean Sanders: So you would agree that it hadn't been filled out before the Ops Team approached you?
Sean Sanders: Okay, and whose responsibility is it to record switch position/derail on the proper form?
Sean Sanders: And you were the employee in charge for that track warrant, and that work group that day, correct?
