Brotherh ood of Maintenance of Way E mployes )
Divi sion - IBT Rail Conference )
)
And )
)
Norfolk Southern Railway Company (rormer )
Norfolk & Western Railway Co mpany) )
Case No. 222
Award No. 222
- - - - - - - - - - - - - - - - - - ).
Richard K Hanft, Chairman and Neutral Member
D. M. Pascarella, E mployee Member
D. L. Kerby, Carrier Member
STAT J •'.MENT OJ.- CLAl M:
" Claim of tl1c Syste m Co mmittee of the Brotherhood that:
The Carrier's discipline !th irty (30) day actual suspensionl of Mr. J. Booker, issued by letter dated April 6, 2016, in connectio n with his alleged improper performance of duty in that on March 9, 2016, while working on the main track near Mile Post PH 15.2 in Lynchburg, Virginia, he was observed talking on a ce llular phone while standing in the foul of the track, was not pursuan t to a fair and impartial investigation (Carrier's File MW-BLUE -16-26-LM-305 NWR).
As a consey_u<.:nce of th<.: viol ation rekrr<.:J to in Parl 1 abov<.:, Claimant .J.
Booker shall be allowed all back pay from March 9, 2016 until Apr il 8, 2016."
FINDTNGS :
Spec ial Board of Adjustment Board 1048, upon the whole record and all of the ev idence, finds and holds that Employee and Carrier arc employee and carrier within the meaning of the Railway Labor 1\ ct, as amended; and, iliat the Board has jurisdiction over the dispute herein; and, that the parties to the dispute were given due notice of die hearing thereon and did participate therein.
T his Award is based on the facts and circumstance s of this particular case and shall not serve as a precedent in any other cases.
1\ fter tl1oroughly reviewing and considering the record and the parties' pres<.:ntations, the Board finds that the claim sho uld be disposed of as follows:
Spec ial Board of Ad justment No. 1048
Award No. 222
Claimant in this matter was charged with using a cell phone while in the foul of the track. He certainly did answer a call from his assistant foreman while standing in the foul. His machine was idled down and his ploughs were down and he was out of his machine, but he violated a cardinal safety rule. He admitted at the investigation that he did so and that he knewit was a rule violation. The charges against Claimant were without question proven by credib le, sub sta ntial evidence.
But this Board reviews the record developed on the property also in regard to the
Organization's complaints about Carrier's hand ling of the matt er o n the property and whether the due process guaranteed Claimant under the Parties' Agreemen t was observed. Rule 30 of that Agreeme nt provides: " ... The employee will be given not less than ten (10) days' adva nce no tice, in writing, of the date of the investigation which shall set forth the precise charge against him with a copy to t h e ge n e ral chairman... " Herc, the notice of the investigation was purpo rtedly mail ed on March 15, 2016, received by the Claiman t on March 17 and not received by the O rganization until March 23, only one day prior to the formal investigation. The Hearing Officer, when confronted by Claimant's representative at the investigation blew this requirement off by sim ply asking Claimant if he was told there would be an investiga tion when he was taken out of service. Carrier in this instance, did not comply wit h its Agreement. Moreover, while the Carrier submits that num e ro us Awards have held that the Rule contemplates not when the notice was received, but when it was dispatched, it missed the mark there also. The notice was dispatched on March 15, 2016 and the investigation was held March 24, 2016 only nine (9) clays after dispatch.
More troubling however, was the involvemen t of the hearing officer, who in order to provide a fair and impartial hearing must not be co nnected to the charges preferred. Herc, the record shows, the hearing officer was instru mental in having Claimant pulled from service and charged to begin with, while also providing the charging officer with the rule to charge Claima nt with at the investigation. But for Claimant's admission to the violation, this might be enough to overturn the o utco me of this investigation.
Finally, Carrier failed to provide the Organization with a transcript of the investigation as required by the 1\ g ree ment.
C laimant's guilt in this matter is not set aside, but given the particular circumstances involved the Board determines that the penalty assessed on the property shall be red uced to a fifteen (15) day actual suspe nsio n. Claimant shall be made whole for all other time suspended from service.
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Spl·cial l o:ml nf ,\Jju:-tmcnt No. 1114X
,\ ward o. ::!22
:
Claim susrnine<l in :iccorJ;ince with the fin<lillj..,':'. Carrier is Jirectl-<l tu make this
,\ w:m.l effective w11h10 thirty dnys foUowinA the <lntl· tl1nt rwo mcm he r.- of this l\nanl
nffL, their si1,1..11atures thereto.
IJ 1. Y)'). f
Richanl K f-l:10fr, Chnuman
D. M. J>nscarclla. Employee 1'-lcmhcr
ConcurreQc and Dissent to follow.
Dntnl at Chtca o. 1Ilm111s h".brnary 'J, ::!018
D. J.. 1-:crhv. Curit:r l\kmhcr
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