The Board, upon the whole record and on the evidence, finds that the parties herein are Carrier and Employees within the meaning of the Railway Labor Act, as amended; that this Board is duly constituted by agreement of the parties; that the Board has jurisdiction over the dispute, and that the parties were given due notice of the hearing.
It is undisputed that claimant was operating the CAT Tamper on the morning of June 29, 2007 when it bumped into a Ballast Regulator at a slow rate of speed. The repair cost of a bent part was estimated at approximately S 100.
Before reaching the merits of the claim, however, we must deal with the procedural objections of the Organization and claimant. They assert that the Carrier's charging officer violated the discipline rule of the Agreement in two separate respects. Rule 25 reads, in pertinent part, as follows:
As written, the use of the word "shall" in subparagraph (c) imposes mandatory procedural due process requirements upon the Carrier in two separate respects: First, a Carrier official who requires a written statement from an employee must affirmatively inform the employee of the right to obtain union representation before the employee submits a written statement. Second, the Carrier official must immediately provide the employee and the union representative with a copy of the written statement upon its completion. Finally, the use of the word "exact" in subparagraph (d) requires a higher level of precision than might otherwise be required by less explicit terminology.
It is undisputed in the transcript of the investigation hearing that the Carrier's Charging Officer did not affirmatively offer the claimant the opportunity to contact an accredited union representative. In addition, it is further undisputed that the Charging Officer did not provide claimant with a copy of his written statement after it was completed. Accordingly, it is clear that the Carrier violated both of the mandatory due process requirements of Rule 25, Section l(c).
During cross-examination of the Charging Officer by the Organization, the following questions and answers were made in the transcript at Page 13, Lines 36 through 43:
Review of the hearing transcript shows, unquestionably, that the Organization properly, and repeatedly, objected to the Carrier's continuance of the disciplinary process after it was clear that the Carrier had violated the foregoing procedural due process requirements. The Organization's objection was properly preserved and advanced during the appeal process. Public Law Board No. 7104 Award No. 30
Where, as here, the parties have agreed upon explicit and mandatory procedural due process obligations in their Agreement, perfection and preservation ofthe right to impose discipline requires compliance with the obligations. When those obligations are not fulfilled, the Carrier effectively waives and/or forfeits its ability to impose discipline.
Che Claim is sustained. The Carrier is directed to make claimant whole for al( losses resulting from the improperly imposed discipline. Further, the Carrier must expunge a!1 of the claimant's employment records of the improperly imposed discipline. The Carrier is directed to comply with this Award within thirty (30) days of the date shown below.
