PUBLIC LAW BOARD NO. 7163

PARTIES TO DISPUTE

) BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES DIVISION,

) INTERNATIONAL BROTHERHOOD OF TEAMSTERS

)

) CSX TRANSPORTATION, INC.

STATEMENT OF CLAIM: “Claim of the System Committee of the Brotherhood that:

The Carrier's discipline (formal reprimand) of Mr. A. Ba rron, by letter dated November 20, 2018, in connection with allegations that he violated CSXT Crew Attendance Policy System (CAPS) was arbitrary,capricious, unneces sary and excessive (System File D91410318/18-45892 CSX).
As a consequence of the violation referred to in Part 1 above,' ... the disci pline ofa Formal reprimand shall be removed from the Principle's discipline record. Additionally, the Principle shall have all unfavorable marks re moved from his attendance record.*** ' (Employes' Exhibit 'A-4').

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 ofthe Railway Labor Act,as amended,that this Board is duly constituted by Agreement dated March 20, 2008, this Board hasjurisdiction over the dispute involved herein, and that the parties were given due notice of the hearing held.

On October 10, 2018 the Carrier directed Claimant to attend a formal investigation at which he was charged with "your responsibility, if any, in connection with information received on October 9, 2018, that you have reached or exceeded the threshold for discipline handling under

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CSXT Engineering Attendance Point System (APS) Policy, on or about September 18, 2018, and all circumstances relating thereto." The investigation was scheduled for November 6, 2018, and was held on that date. Following this investigation, Claimant was assessed a Formal Reprimand. The record of the investigation established that Claimant was absent from work on September 17 and 18, 2018. The Carrier's policy allows employees to submit medical documentation for an absence within seven days of an absence. Claimant provided doctor's notes for his absences, but not within the seven-day time limit.

The Organization first argues that the investigation was untimely. Rule 25 Section l(d) of the parties' Agreement provides, in pertinent part, "The hearing shall be scheduled to begin within thirty (30) days from the date management had knowledge of the employee's involvement and such hearing shall not begin in less than ten (10) days from the date of the notice." The Organization contends the Carrier had notice that Claimant might be in violation of the attendance policy when it did not receive medical documentation from him by September 26, the eighth day following his absence. The scheduling of the investigation for November 6, it says, violated the thirty-day time limit. In response, the Carrier asserts management did not have knowledge until October 9 that Claimant had exceeded the threshold of absences. It avers that the attendance policy is not adminis tered locally, and that payroll finalization and administrative handling may delay the Carrier's first knowledge of Claimant's accrual of points under the Attendance Point System.

The Organization raised its timeliness objection at the beginning of the investigation. The Hearing Officer responded by reading the Notice oflnvestigation and then stating, "The way I read

it, it shows that the information was received on October the 91 and the letter was sent out on

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October the 101h . So your objection is noted for the record and is overruled, and we will proceed." No evidence or testimony was submitted to establish the date ofthe Carrier's first knowledge.

If the Carrier's first knowledge of Claimant reaching the threshold for discipline occurred on October 9, we would find that the investigation on November 6 was timely. However, when the incident giving rise to the discipline occurs more than thirty days before the investigation, there is a presumption that the investigation is not timely. That presumption is rebuttable, but the burden ofproofis on the Carrier to establish the date ofmanagement's first knowledge. That burden cannot be met simply by the Hearing Officer reading the date from the Notice oflnvestigation. There must be evidence, documentary and/or testimonial, to support the Carrier's contention. In this case, there was none. We must, therefore, find that the Carrier scheduled and held the investigation in an untimely manner in violation of Rule 25 Section 1 (d) of the Agreement. The discipline is to be rescinded.

AWARD: Claim sustained. The Carrier is directed to comply with this Award on or before thirty (30) days following the Award date below.

mon hairman and N utral Member

David M. Pascarella Employee Member

John Nilon Carrier Member

Dated:

8/9/21 _

Arlington Heights, Illinois