PUBLIC LAW BOARD NO. 7544
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Background
On April 17, 2015 the carrier Issued to dalmant A. Nygaard a notice offormal Investigation and hearing which states, In part, the following:
"The purpose of the Investigation and hearing Is to develop all facts and circumstances and place responsibility, if any, for your alleged occupying main track without authority near Hoffman, MN on Thursday, April 16th. This Indicates a possible violation of, but Is not llmlted to, the following rules:
On April 21, 2015 the formal investigation and hearing convened wherein Claimant and his representative were afforded the opportunity to present testimony and other evidence as well as cross examine the carrier's two (2) witnesses and evaluate CP's seven (7) exhibits.
On May 4, 2015 the Director of Track - Glenwood issued to Claimant a discipline assessment letter finding daimant In violation of OTS 21.1- On-Track Safety for Controlled Track and assessing a thirty
(30) day actual working day suspension.
On May 21, 2015 the Organization and the Carrier agreed to progress Claimant's discipline dispute for resolution before this Board "utilizing the abbreviated procedure provided for In Paragraph (K) of [the] PLB Agreement."
Findings
Public Law Board No. 7544, upon the whole record and all the evidence, finds that the parties herein are Carrier and Employes within the meaning of the Railway Labor Act, as amended; that the Board has Jurisdiction over the dispute herein; andthat the parties to the dispute were given due notice of the hearing and did participate therein.
Consistent with the PLB Agreement for this Board, the evldentiary record In this proceeding is comprised of the following: (A) notice of investigation, (B) transcript of Investigation and all related exhibits, (C) dlsclpllne assessment letter and (D) on-property correspondence related to progression of the claim.
With respect tothe alleged rules vlolatlons, the Carrier determined that Claimant violated OTS 21.1- 0n-Track safety for Controlled Tracks which states "{b]efore occupying or fouling a controlled track, protection or warning must be established." Claimant acknowledges In his written statement that he occupied the main track near Hoffman, MN, on Thursday, April 16, 2015 without "track and time,. authority as follows:
"I was on the track and wanted to get Hoffman East to CP 162 however I was incorrect I thought that the governing signal short of Hoffman East was Hoffman East. I was
incorrect. Manager Bally called over the radio and asked me to set the work truck off Informed me I was out of my limits so I canceled mv track & time set mv cones and
waited for [Roadmaster) Craig Helgaas to arrive(.]"
Notwithstanding Claimant's violation of OTS 21.1- On-Track Safety for Controlled Tracks, the Organization objected to the hearing as unfair with a predetermined outcome because Claimant acknowledged culpability prior to the hearing and was held out of service without reason.
A fair and impartial hearing Is due process for Claimant and prejudgment undermines the process. This Is the Organization's objection. Fairness and lmpartialltv are at risk when multlple rotes are performed by a singular Carrier official. In this claim Director ofTrack Swenson performed multiple roles. He was present for and participated In the Investigation or inquiry of Claimant with Roadmaster Helgaas on April 16 In the Director's conference room. The next day Director Swenson issued the formal, written charges levied against the Claimant allegingrules violations. Director Swenson served as the presiding offlclal at the Investigative hearing. He questioned Roadmaster Helgaas about the Roadmaster's and Director's inquiry of Claimant on Aprll 16. When a point was not testified to by Roadmaster Helgaas - Claimant not having Order A20 - - the Director conducted further examination. When testimony not supportive of Director Swenson's charging letter was testified to by Roadmaster Balley - - Balley told Claimant "you're out of your limits and that was no problem" - - further examination or clarification of that testimony was not conducted by the presiding official. After the hearing, Director Swenson determined Claimant violated OTS 21.1 and assessed dlsclpllne.
In the circumstances of this claim, the Organization'sconcern for a fair and Impartial hearing without a predetermined outcome are assessed in the context of the problematic nature posed by Director Swenson serving as investigator, prosecutor, jury and judge with the responslbllity to objectively weigh all the evidence. Given that context, the violation of OTS 21.1by Claimant warrants a written reprimand rather thanthe thirty (30) day actual work day suspension.
Claimant receives written reprimand for violating OTS 21.1.
2016
2016
Rltti
Patrick Halter
Neutral Member