This dispute involves Mr. Jesus Unzueta employed by Metra as Assistant Track Foreman.
Mr. Unzueta was sent via first-class mail and certified-mail a letter dated March 13, 2002, instructing him to attend a formal investigation on Friday, March 22, 2002, for the purpose of developing the facts, determine the cause, and assess responsibility, if any, in connection with his alleged unauthorized and unpaid absences on Monday and Tuesday, March 11 and 12, 2002.
Mr. Unzueta was charged with alleged violation of Metra Employee Conduct Rule "Q", Paragraph 1 and Metra's Special Instruction # 1, Pages 1 and 2.
The letter of March 13, 2002, to Mr. Unzueta calling for the investigation and the specific charge of the violation of the Carrier's Rules is attached to this Award.
The investigation of Mr. Unzueta was held as scheduled on March 22, 2002.
Following the investigation, Mr. Unzueta was sent a Notice of Discipline letter dated April 10, 2002, assessing him discipline of five (5) work days actual suspension.
The transcript of the investigation held on March 22, 2002, provides the basis for this Board's adjudication of this dispute.
This dispute is before this Special Board of Adjustment established by agreement between the Brotherhood of Maintenance of Way Employes and the Northeast Illinois Regional Commuter Railroad Corporation (Metra) dated November 12, 1999. SBA No. 1122.
The issue in this dispute is the unauthorized absence of Mr. Unzueta from work on his assigned position as Assistant Track Foreman on March 10 and 11, 2002.
The investigation transcript reveals that Mr. Unzueta was not present at the investigation held on March 22, 2002, but was represented by Organization Representative Mr. Alan Scott, Local Chairman.
Mr. Moses Richardson, Rock Island District Engineering Officer, was the Hearing Officer and conducted the investigation. Mr. Robert Worley, Roadmaster, was the only witness to testify for the Carrier at the investigation.
The circumstances in this dispute are unusual, to say the least, as in most all investigation proceedings, the employee accused is present to participate in the proceedings, listen to testimony of all others who may testify, and additionally, is
In this dispute, Mr. Unzueta, the accused, was not present but was represented by Mr. Alan Scott, Local Chairman.
At the start of the investigation, the transcript testimony reveals that Local Chairman Scott objected to the investigation because Mr. Unzueta was not present. Mr. Richardson, the Hearing Officer, asked Mr. Scott if he desired a delay or postponement of the investigation in order to contact or locate Mr. Unzueta.
The record shows that the Hearing Officer afforded Mr. Scott that opportunity, but the record shows that Mr. Scott declined and concurred with proceeding with the investigation.
The testimony of Roadmaster, Mr. Robert Worley, clearly confirmed the fact that Mr. Unzueta last worked on March 8, 2002, but did not report for work on Monday, March 11, and Tuesday, March 12, and did not make any attempt to contact anyone before those dates to ask for permission to be off duty. In fact, the testimony in the record reveals that as of the date of the investigation, Mr. Unzueta had made no contact with the Carrier; and additionally, Mr. Scott, his Organization Representative, stated that he was unable to contact Mr. Unzueta.
Based on the record before us, it is clear that there is no basis for considering any procedural defect because of Mr. Unzueta not being present at the investigation.
The Organization acquiesced in continuing the investigation, and accordingly, our decision will be based on the merit of this Case.
Based on the record before us, Mr. Unzueta failed to report for work on March 11 and 12, 2002, and was absent without prior permission. Those are the irrefutable facts in this Case, and Mr. Unzueta was in violation of the Carrier rules as charged.
Accordingly, it is our decision that there is no basis for overturning the discipline decision of five (5) work days actual suspension plus one (1) day deferred suspension from a prior discipline case against Mr. Unzueta which was assessed on October 23, 2001.