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!!EF?RE SPECIAL BOARD OF ADJUSTMENT 98 N;.i:)·:;t.;,,;:, i._:.;,1;·::. ; :;:; . . ,

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BROTHERA'.00D OF MAINTENANCE OF WAY EM:PLOYES

DIVISION - IBT RAIL CONFERENCE

and

NATlONAL R;AILROAD PASSE;NGE:i.l CORPORATION (AMTRAK).

NORTHEAST COIUUDOR

CaseNo,286

TATEMENT OF CLAIM:

Appeal of the discipline in1posed upon Mr, Anthony Sessa on August 31, 2009.

FIND1NGS:

By notice dated June 26, 2009, the Claimant was directed to attend a formal investigat;on on charges that the Claimant had violated the Cat1'ie1"' s Standards of Excellence, Workplace Violence Policy, and NORAC Operating Rules when, he allegedly cursed and threatened an ET Gang Foreman and the Foreman's mother on April 24, 2009; and on April 29, 2009, allegedly told co-workers that,he had go11e to the Foreman's hO\lse with the intent-of physically ttacking the Foreman. The investigation was conducted) after a postponemel}t, on August 14, 2009, By letter dated August 31) 2009, the Claimant was notified that he had 1,een fottnd guilty ofvlolating the Carrier's Standards of Excellence relating to A :tending to Duties, Professional and 'Personal Conduct-., teamwork and conduct, and that the chal'ges relating to the Workplace Violence Policy and NORAC Opr .tating Rules had not been sustained, This letter further 1:1otified the Claimant that he we ::i bein assessed a.ten-day suspension. The Organizatipn thereafter filed a claim n the C]ajman,t' s behalf1 challenging the Carrier's dec1sion to discipline him. The Carrier denied the claim, but reduced the suspeirnion from ten days'

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to five days' duration,

The Cai:rier contends that the instant claim should be denied in its entirety because the investigation must be deemed timely in light of the fact that the Carrier initially was notified of the allegations by an anonymous letter and its police had to investigate the incident before any charges could be made, because.substantial evi ence iu the re.cord supports the finding that the Claimant was guilty of'violating the Carrier's Standards of Excellence by using profanity during a ver al' altercation with the Foreman, and be ause the discipline imposed was not an aquse of the Ca.triet's discretion. The Organization contends that the instant claim should be sustained in its entirety because the Olrrier failed to conduct a timely hearing in this matter, because the testimony of the accusing witness was.not credible, because the Claimant merely repeated the Foreman's verbal assaults, becatlse the Ca-□ierfailed to establish that the.Claimant violated the Ca11·ie1" s

Standards of Excellencel· and beca:use the Foreman's 0Wl1 languag during t11e incident in

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question was unprofessional.

The .parties being 1.mable. to resolve their dispute, this matter came befo.re· this

Board.

TMs Board finds that the Carrier has failed to meet its bur_den of proof on the

merits in this case, Therefore, the claim mnst be sustainod,

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AWAIU!:

The claim is sustained.

CARRIER MEMBER DATED: 1'"),\ '' \ 7 c ,1.'\

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