AWARDNO. 5

PARTIES TO DISPUTE

) BROTHERHOOD OF MAINTENANCE \\/AY

) INTERNATIONAL BROTHERHOOD OF TEAMSTERS

)

)

) CSX TRANSPORTATION, INC

DIVISION

STATEMENT OF CLAIM:

L The Carrier's discipline (dismissal) Mr. K. , by letter dated June , 201 for alleged violation of Rules 104.2(d), 104.3(a) and (b), 2000.1(2) and CSX Policy on Workplace Violence was arbitrary, unsupported, unwarranted and in violation of the Agreement (System File D3390301 17-223758 CSX).

2. As a consequence of the violation referred to in Claimant K. shall now have the charges and discipline removed from his record, reinstated to service all

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 as amended. that this Board is duly constituted by Agreement dated March 2008, this Board has jurisdiction over the dispute involved herein, and that the parties were given due notice of the hearing held.

Following a formal investigation at which he was charged with using vulgar language toward a manager and attempting to provoke him by '·getting in his face," Claimant was dismissed from service. According to the Carrier, Claimant engaged in a verbal altercation with Roadmaster Wayne Kirkland regarding Claimant possibly receiving an assessment for a wide gauge derailment.

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According to testimony by Kirkland and other employees in the vicinity, Claimant used vulgarity in

an language.

Refore the we must consider a argument advanced by the Organization. It avers that the hearing officer met with the witnesses before hearing started, gave each one a copy the statements they had prepared, and told them to enter the statements as evidence. The Organization insists this constituted coaching them on what to do and say. In support of its position, the Organization cites Award No. 31 of Public Law Roard No. 7660 (BM WE-UP, Ref. Newman), finding that the claimant therein was denied his right to a fair and impartial hearing when the hearing officer met ex parle in secrecy and behind closed doors with witnesses prior to or during the investigation.

While we agree that it \Vould be a fatal denial of due process for a hearing officer to tell witnesses how to testify, a mere accusation that such occuned is not sufficient to find a due process violation. The Organization must meet a burden of proof by at least establishing aprimafacie case that the hearing officer influenced the testimony of a witness. In the case at bar, the record reflects that the hearing officer handed two of the witnesses copies of their own statements and simply told them to introduce them as evidence. No objection was made by the Organization during the investigation, even though they had the opportunity to question the witnesses to determine the extent of the contact they had with the hearing officer. In fact, no objection was made by the Organization in its initial letter appealing Claimant's dismissal. It was not until the Organization's letter confirm­ ing the conference that any mention of this was made. On the basis of the record we have before us,

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we cannot conclude that there was a denial of due process or that Claimant was not affl1rdcd a fair

Our review of the record ofthe investigation shows that the had substantial evidence

is no dispute there was an argument between him and Roadmaster Kirkland. There was conflicting testimony as to whether Claimant used vulgar language, but it is not the role of this Board to resolve factual confl icts. That is the role of the hearing officer, and we would reverse her decision only if we could find that it was unreasonably made. We make no such finding in this case, pai1icularly in light of corroborating statements from other employees. We further reject any suggestion that such language is acceptable in the workplace as "shop talk." Those days are over, and most employers, including Carrier, have made that clear to their employees.

It is the Board's conclusion, however, that permanent dismissal \Vas excessive in this case. It is apparent that Claimant \Vas upset about the prospect ofbeing blamed for a wide gauge derail­ ment that he did not believe was his fault. While this does not excuse his conduct, the Board can understand his mind-set at the time. We also note that Claimant had nearly ten years ofservice with the Carrier at the time ofthis incident. Without minimizing the seriousness of Claimant's offense, we will direct that he be reinstated to service with seniority rights unimpaired, but without compen­ sation for time lost. Prior to his return to work, though, the Carrier may require him to attend and successfully complete, on his own time, an anger management class of the Carrier's choosing. Claimant is on notice that any future conduct of this nature may result in his permanent dismissal,

PUIJI.IC LAW B(l/\RD No. 7163

AWARD:

sustained

with the

Neutral Member

Andrew Mulford Employee Member

Katrina Donovan Carrier Member

Dated: _02_/04_/19

Arlington Heights, Illinois