PUBLIC LA14 BOARD--N-')I-..-, 1 844
1Ci ~C~(? :`~l , W
CASE NO. 71
PARTIES TO THE DISPUTE:
Brotherhood of Maintenance of Way Fmployees
tend
Chicago and North Western Transportation Company
<1
''·TrMENT OF CLAIM:
t: 1
"Claim of the System Committee of the Brotherhood that:
(1) The sixty (60) day suspension of Trackman Jose G. Ramos
ryas without Just and sufficient cause. and wholly disproportionate to the alleged offense. (System File D-11-lJ-241)
(2) (a) Time limits were not observed under the provisions of
Rule 19(a).
(b) Claimant in addition to the sixty (60) day suspension
was notified to serve a twenty (20) day deferred suspension recorded in Notice to Serve deferred Suspension
No. 2.
(3) Trackman Ramos be compensated for all time lost and the
discipline be stricken from his record."
OPINION OF BOARD:
The threshold question upon which this case turns concerns the timeliness
of the hearing which was held on November 2, 1977. There is no doubt that
this was more than ten (10) days after the incident for which Claimant was
charged. Carrier asserts, but has declined or failed to provide any corroborative evidence, that the ADME first learned of the incident on October 26, 1977.
Even if ar~uendo, this belated knowledge was established, there is no showing
of justification for such delayed communication.
1
`~z'f{·
r' s
. 1 tlC^, t)~.i"lc`.>('~ ' .~, . ` >c'., LIf>>_ `t. _.e , , p?
by this Boar
in Award N«. 26> (Case No. -11) as follows:
"Under the controlling Language at issue
herein, the
hearing
must
be held within ten calendar days of the i11oped offense
or w='
chin ten calendar
J
iv:-s
of the date when l;o ADE`M learns
e)r the alleged offense.
The
obvious intent
K
that
language
i : t c>
require exiled z c
i~aa i i
zvas t i anon
so char Mdente will
(,r-, f resh and memories
vivid;
and so that an
a~cusod
employee
will- riot be kept in
limbo.
r>'Ailure to abide b,,-
those
express
requirements could invalidate ran otherwise proper imposition
of discipline.
$. !!ot-J
fi,t.ut-
burdens of pr . auder such
i.raSua_ , i: ipp: o
prLate at this point. A party alleging a procedural detect
(in this case the Organization) carries the initial burden
to show a prima facie violation of time requirements. Under
the 2.-1r);uage before us we deem that this initial burden is
met if it is shown ' t g, was
t
held more than ten
i that tx~ = i~
calendar days after the occurrence of the alleged offense.
S.
up,}
. much a prim<i-_
4y:°
kc showing the burden shifts to th2
Carrier to show extenuating circumstances, it any. Where,
as here, Carrier avers that the hearing was held within ten
calendar days of the ADME's knowledge of the alleged offense,
then Carrier has the burden of proving that fact, as well as
the additional burden of showing good reason for
any delay in the ADME acquiring knowledge of the offense.
k
The latter point must be a required burden of proof in such
cases to vitiate the potential for unilateral manipulation
of the negotiated time limits if the ADrfE is negligently or
even intentionally kept in the dark about an alleged offense.
See also, Award No. 28 (Case ho. 85).
The Organization has made out a prima facie case that Carrier has violated
Rule lq(,a) and Carrier has failed to rebut that showing. Accordingly, the
claim must be sustained. No finding is made or implied regarding the merits
of the disciplinary action.
FINDINGS:
Public Law Board No. 1844, upon the whole record and all of the evidence,
finds and holds as follows:
hat Che
Carr
:_'C
"ad o_Ctpt:3v`'u .ai'it)'t',_,:
:a? Ohi;>
dia('727tn'
are, t`Wt~?t_'°-
tivc ly, Carrier and Employee within the meaning of the Railway Labor Act;
that Lhe Board
has
jurisdiction
ot. , < <._ d
1spt=:e .:. "~.`. _.?
L.
chat the
time
LOLL was violated.
AWARE?
Claim sustained.
(30) days of issuance.
s to comply WLth
Award within thirty
Dana E.
Eiscfien, Chairman
C. Harper, Empyee member
R. W. Schmiege, Carr er Member
