BEFORE
PUBLIC LAW BOARD NO. 7584 CASE N0. 15
BROTHERHOOD OF RAILROAD SIGNALMEN
(Carrier file: 2012-120581)
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) PARTIES TO THE
) DISPUTE
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"Claim on behalf of M. R. Shepherd, for reinstatement to his former position with all seniority rights and benefits unimpaired, payment for all time lost, including overtime, and any reference to this matter removed from his personal record, account Carrier violated the current Signalmen's Agreement, particularly Rule 55, when it issued the harsh and excessive discipline of dismissal to him without providing him a fair and impartial Investigation and without meeting its burden of proving the charges in connection with an Investigation held on January 24, 2012. Carrier's File No. 2012-120581 . General
Chairman's File No. 12-02-CD. BRS File Case No. 14859-C&O(CD)."
The Board, upon consideration of the entire record and evidence herein, finds that the Carrier and the Employee involved in this dispute are respectively Carrier and Employee within the meaning of the Railway Labor Act, as amended, that this Board is duly constituted by Agreement dated July 30, 2012 that this Board has jurisdiction over the dispute involved herein, and that the parties were provided due notice of the instant proceedings. The parties have been unable to resolve this issue and, after an on-property conference, they have placed the issue before this Board for adjudication.
After a thorough review of the record, and a full hearing on this matter held on September 10, 2013, with the Claimant in attendance, the Board concludes that the Claimant in this case was a Signalman on December 15, 2011 . The Carrier gave notice of investigation in a letter dated January 12, 2012, charging the Claimant with violating General Rule A; General Regulations Rules GR-2 and GR-2A: as well as, the CSX Code of Ethics. This charge
letter stemmed from information received on January 5, 2012, that the Claimant was arrested by the Kentucky State Police on December 15, 2011 , for the alleged possession and distribution of child pornography.
The investigation was held, as scheduled, on January 24, 2012. Following this investigation, the Claimant was dismissed from the service of the Carrier on February 10, 2012.
The Rules in question state:
"General Rule A: Employees must know and obey rules and special instructions that relate to their duties. When in doubt as to the meaning and application of any rule or instruction, employees must ask their supervising officer for clarification.
GR-2 - All employees must behave in a civil and courteous manner when dealing with customers, fellow employees and the public. Employees must not:
3. Be disloyal, dishonest, insubordinate, immoral, quarrelsome, vicious, careless, or
incompetent.
GR2-A: Criminal conduct which may damage the company's reputationis prohibited. Criminal conduct which indicates a potential danger to the company, its employees, its customers or the publicis prohibited.
CSX Code of Ethics includes statements such as:
"We should always try to avoid even the appearance of improper behavior." "Be a positive influence on communities and the environment.11
"CSXis committed to maintaining high ethical and legal standards in every aspect of our business. You must conduct yourself in a manner that exhibits your commitment to this important objective. 11
The Discipline Rule negotiated between the parties states:
RULE 55 - DISCIPLINE
"(a) An employee who has been in the service more than sixty days will not be disciplined or dismissed without first being given a fair and impartial hearing. Suspension pending a hearing will not be considered a violation of this principle .
The employee involved will be notified in writing of the charge against him within ten (JO) days of the Company's knowledge of the alleged offense.
Hearing shall be held no sooner than ten (10) and no later than fifteen (15) days of the date charged.
Decision shall be rendered in writing within twenty (20) days from completion of hearing.
Appeal from a decision may be made to each succeeding higher officer, up to and including the highest officer designated by the Carrier to whom appeals may be made. Such appeals must be filed, in writing, within twenty (20) days from date of each decision, and a
copy furnished to the official appealed from. Rehearing, if desired by either party, will be
held within twenty (20) days of appeal, and decisions on appeals, whether rehearing is or is J
not held, will be rendered within sixty (60) days.
An employee may be assisted and represented at hearings and appeals by an employee of his own selection, who shall be one within the scope of this Agreement, or by his duly accredited representative, who may question witnesses. If he chooses an employee of his own selection to represent him, the duly accredited representative shall also have the right to be present at the hearing and appeals.
A transcript of testimony will be taken at hearings and copy will be furnished the employee on request.
If the employee is taken out of service and is later exonerated from blame, he will be reinstated and paid for wage loss, if any, suffered by him, less the amount of other compensation received during time held out of service.
If an employee is suspended, the suspension shall date from the time he was taken out of service.
OJ The time limits provided in this Rule may be extended by mutual agreement, which shall be in writing.
(k) (Effective July 1, 1963) After a signal employee has established 5 years seniority under the Signalmen's Agreement, a clear record for the first or second six months of a calendar year subsequent to July 1, 1963, will cancel one disciplinary entry on service record made prior to the six months of clear record. A clear record for one calendar year subsequent to July 1, 1963, will cancel three disciplinary entries on service record made prior to the year of
clear record. Entries will be cancelled from the latest date or in reverse order.
(I) Appeals made under this Rule shall be made first to the Regional Engineer for the territory involved. Further appeal will be to the Manager Labor Relations, the highest officer of the Carrier designated fo that purpose. It is understood that it is the Carrier's prerogative to change the officers designated to handle discipline matters.
(m) The seniority and assignment of an employee dismissed and later reinstated to service shall be a matter of negotiation between the management and the general chairman."
Background
On December 28, 2011 an article was printed in the local newspaper naming the Claimant as having been arrested for possession and distribution of child pornography. On or about January 5, 2012, a Special Agent of the Carrier was informed of this news article. After some research, he forwarded a copy of the article to the Claimant's supervisor.
This set the investigation procedure in motion.
There is no evidence on the record that the Claimant was ever indicted or convicted of this charge. In fact, at the time of the company investigation, the record is clear that the
Claimant was not indicted. The Claimant was never asked, during the course of the company investigation, if he had in fact done the deed for which he was criminally charged.
The sole basis for the company charge, its investigation and its subsequent dismissal of the Claimant was the newspaper report and a subsequently received copy of the arrest record concerning this charge. ยท
Position of the Carrier
It is the company's position that the arrest, and the subsequent notoriety surrounding this arrest are sufficient to prove the Carrier charges. They say that the criminal standard of proof is not the same as the proof required in the matter before this Board. The Claimant admits that he was the individual arrested. Thus, the Carrier says, the charges were proven and he was legitimately subject to dismissal.
Position of the Organization
The Organization first raises procedural objections. The Organization had requested copies of documents in advance of the on property investigation hearing. They were never given these documents in advance. Thus, they say, they were denied the ability to prepare a proper defense in this matter. Further, they say that the Carrier missed the 1O day deadline for levying charges that is required by Rule 55.
With respect to the merits of the claim, they say that there is absolutely no proof on the record that the Claimant was guilty of any charges. As was argued orally before this Board, anyone present in the United States is subject to arrest. There are many instances of people who have been arrested who are later exonerated of their alleged crimes.
Therefore, the Organization says that the Carrier has failed to meet its burden of proof, and the claim should be sustained.
RESULT:
With respect to the procedural objections raised by the Organization, this Board is not persuaded.
There is no evidence of any language in the Collective Bargaining Agreement that requires pre-production of documents. It has long been held .in this industry that discovery is not part of the on-property investigation procedure. What is required, and what was done in this case, is to allow sufficient time for a review of any documents during the conduct of the hearing. Sometimes this might entail a significant amount of time. It appears, after a careful review of the transcript, that a reasonable amount of time to review these documents was allowed during the course of the investigation. As a result, this procedural objection is dismissed.
With respect to Rule 55 and the timeliness objection, this Board finds that the supervisor only became aware of the incident on January 5. Thus, notice of the investigation was properly given within the time limits required by the agreement.
With respect to the merits of this matter, after reviewing all of the record in great detail, and after listening to the arguments presented before this Board, it is the conclusion of this Board that something more than a bare arrest and a subsequent newspaper article is
required to sustain discipline in this industry. The Carrier is correct that the standard in these matters is not the same as, and in fact is much lower than, that required any criminal case in court. However, there must still be some evidence. In this case, there was none on the record.
As a result, while very cognizant of the heinous nature of the allegations, and the Carrier's reaction to these allegations, admissible proof of actual wrongdoing is needed in order to sustain discipline. A simple arrest, without even an indictment and without any other proof of wrongdoing, is simply not enough. In the circumstances, this Board has no option but to reinstate the Claimant with full back pay, and with his employment record cleared of this incident.
The claim is sustained.
/ Roger K. MacDougall Chair and Neutral Member
John ragg Vice-President
Employee Member
Terrence J. O'Regan Manager Labor Relations Carrier Member
Dated: ff.$ / RJ/li At: Chicago, IL,