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LA\V BOARD 71

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INTERNATIONAL BROTHERHOOD OF TEAMSTERS

DISPUTE ) CSX TRANSPORTATION, INC.

STATEMENT OF CLAIM:

1. The Carrier·s discipline (dismissal) of Mr. J. letter dated June 1 m connection with allegations that he violated CSXT Operating Rules 104.2(a), l 04.4(a), 712.23(a) (b), 2400.1 (4) and Maintenance of Way Instruction (MWI) M003C was arbitrary, unsupported, unwarranted and in violation of the Agreement (Carrier's File 201 I 51 CSX).

As a consequence of the violation referred to in

and to be made whole, including all lost pay, benefits and credits. Exhibit 'A-2').'.

FINDINGS:

The Board, upon consideration of the entire record and all of the evidence, finds that the parties are Carrier and Employee within the meaning of the Railway Labor Act, as amended, that this Board is duly constituted by Agreement dated March 20, 2008, this Board has jurisdiction over the dispute involved herein, and that the parties were given due notice of the hearing held.

On April 27, 2017, System Division Engineer Alexander Kuree was informed that Trackman

B. M. Roberts had sustained a personal injury while installing switch timbers in Selkirk Yard the day before. At the time, Claimant was working with Trackman Roberts. In connection with

PUBI.IC LAW BOARD No. 7163

both employees provided written statements, Roberts

a

Trackman Roberts to fall backwards. statement "I said was

kept working:' In his statement, Roberts

"When I landed

right elbow slammed

the

ballast. I sustained a cut to the elbow and it swelled and the joint become stiff I am

getting x-rays to make sure there are no fractures."

According to the Carrier, Mr. Kurec investigated this incident, reviewing video recordings from the yard and examining the work site and tools. He concluded that Trackman Roberts had been using the claw bar to lift the rail so tie plates could be inserted. The Carrier states that the claw bar

,vas improperly used, and that caused the bar to slip, thereby causing Trackman Roberts to fall. Incidental to his review of video recording, Mr. Kurec observed that Claimant ,vas working within the red zone of a backhoe at the time.

Claimant and TrackJTian Roberts were directed to attend a fom1al investigation at which they were charged with failing to use the proper tools to install tie plates and concealing facts when questioned about an on-duty injury. Following the investigation, both employees were dismissed from service.

The Organization has raised several procedural objections in this case. First, it says the Hearing Officer reopened the investigation after it had been closed. The record reflects that the employees' representative made a closing statement after all witnesses had been questioned. At conclusion of his statement, the Hearing Officer began to question the representative about his closing statement, and declared that the closing statement was improper because it was not based on

PUB!.IC LAW HOARD No. 7163

the gathered in the The Hearing was wrong and his of the

not

was not

that warrants

particularly since the refused himself to be questioned. did

not really constitute a reopening of the investigation where additional evidence was received after the employees under charge had been asked if they had anything further to add to the hearing.

The Organization additionally objects to the fact that Claimant's discipline letter cited a violation of Rule 712.23, defining red zone for on-track equipment. The Organization asserts that Claimant was not charged with this rule violation. We There is nothing in the notice directing Claimant to attend the investigation that mentions his working in the red zone of a back hoc. The purpose of the notice of investigation is to inform an employee as to the nature of the charges him, thereby enabling him to prepare a defense. lt is not necessary, under the parties' Agreement to cite specific rule violations. The employee however, entitled to "advance notice, in writing, of the exact offense of which he is accused." Inasmuch as Claimant had not been accused of working in the red zone of the back hoe, it was improper for the Carrier to include that in the discipline notice. The remedy for this procedural violation is that the Board will not consider that offense in its determination of the appropriateness of the discipline imposed.

The Organization also objects to the fact that Claimant was withheld from service pending the investigation. The Discipline Rule of the parties' Agreement specifically permits the Carrier to hold an employee out of service pending the hearing ''when a major offense has been committed." It is our conclusion that withholding Claimant from service in this case was authorized this Rule.

PUB!!C LAW BOARD No. 7163

Finally. the Organization

a right to to the merits, it

the Carrier to

that the

it with any ahead

had

to support charge against Claimant. The record establishes that Claimant knowingly provided false information regarding the injury of Trackman Roberts. ifwe disregard the charge that Claimant was working in the back hoe's red zone. we find that the balance ofthe charge constitutes a serious offense that calls into question Claimant's honesty. Notwithstanding the fact that Claimant had almost ten years ofservice at the time ofthis incident, we find that his dismissal this case \Vas neither arbitrary nor excessive.

AWARD: Claim denied.

. Eimon Chairman and Weutral Member

Andrew Mulford Employee Member

Dated: -2-/4-/19----- Arlington Heights, Illinois

Katrina Donovan Carrier Member