AWARD NO.

Organization Fiie No.

TO DISPUTE

) BROTHERHOOD OF MAIN OF

) INTERNATIONAL BROTHERHOOD OF TEAMSTERS

)

)

) CSX TRANSPORTATION, INC.

DIVISION,

STATEMENT OF CLAIM:

I. The Carrier's discipline (dismissal) of Mr. B. Roberts, by letter dated June 14,

in connection with allegations that he violated CSXT Operating Rules l 04.2(a), l 04.4(a), 712.23(a) and (b), 2400.1 (4) and Maintenance of Way Instruction (MWI) M003C was arbitrary. unsupported, unwarranted and in violation of the Agreement (Carrier's File 20 I 177 CSX).

2. a consequence of the violation referred to in

shall now to service,

him and to be made whole, including all lost pay, benefits and credits.· (Employes' 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 2017, System Division Engineer Alexander Kurec was infonned that Claimant had sustained a personal injury while installing switch timbers in Selkirk Yard the day before. At the time, Claimant was working with Trackman J. Ham. In connection \Nith this injury, both

Ptmuc LAw BOARD No. 7163

employees provided written each Claimant was pulling spike

statement In his

Claimant said, "When I landed right slammed the bal I sustained a cut to the elbow and it has since swelled and the joint has 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 \Vork site and tools. He concluded that Claimant had been using the claw to lift the rail so tie plates could be inserted. The Carrier states that the claw bar was improperly used. and that caused the bar to slip, thereby causing Claimant to fall. Incidental to his review of the video recording, Mr. Kurec observed that Claimant was working within the red zone of a backhoe at the time.

Claimant and Trackman Ham were directed to attend a formal 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 the 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

PUBLIC LAW BOARD NO. 7163

facts gathered in the investigation. The Hearing Officer was and his of the

not not

presenting evidence or testimony. however, that warrants the

discipline, particularly the refused to allow himself to be questioned. This

not really constitute a rnr,nP•Y'I of the investigation where additional evidence was received after

the employees under charge had been asked if they had anything fmiher to add to the hearing.

Organization additionally objects to the fact that Claimant's discipline letter cited a violation of Rule 71 defining the red zone for on-track equipment The Organization asserts that Claimant was not charged with this rule violation. We agree. There is nothing in the notice directing Claimant to attend the investigation that mentions his working in the red zone of a back hoe. The purpose of the notice of investigation is to infonn an employee as to the nature of the charges against him, thereby enabling him to prepare a defense. It is not necessary, under the parties' Agreement to cite specific rule violations. The employee is, 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 by this Rule.

PUBLIC LAW BOARD No. 7163

Finally, the Organization contends the Carrier failed to provide it with any information ahead a

gives the Organization a right to discovery disciplinary proceedings.

Turning to the merits, it is the Board's conclusion that the Carrier had substantial evidence to support its charge against Claimant. The record establishes that Claimant knowingly provided false information regarding his injury, which was the result ofhis improper use ofthe tool. Even if we disregard the charge that Claimant was working in the back hoe's red zone, we find that the balance of the charge constitutes a serious offense that calls into question Claimant's honesty. Notwithstanding the fact that Claimant had almost twelve years ofservice at the time ofthis incident. we find that his dismissal in this case was neither arbitrary nor excessive.

AWARD: Claim denied.

E. imon Chairman and Neutral Member

Andrew Mulford Employee Member

Dated: --2/-4/1-9 ----

Arlington Heights, Illinois

Katrina Donovan Carrier Member