' SPECIAL BOARD OF ADJUSTMENT N0. 986
Case No. 29
Docket No. NEC-BMWE-SD-1317D
PARTIES:-Brotherhood of Maintenance of Way Employes
TO
DISPUTE: National Railroad Passenger Corporation (Amtrak)
FINDINGS:
By letter dated April 15, 1985, Claimant J.W. Turner was-.
notified to attend a hearing on the following charges:
violation of Amtrak Rules of Conduct, Rule "A" which reads:
"Employees must render every assistance in carrying out the rules
and special instructions and must promptly report to their
supervisor any violation thereof.".
violation of Amtrak Rules of Conduct, Rule "Y" which reads:
"Employees must obey instructions from their supervisor in matters
pertaining to their respective branch of the service, and
employees whose duties require them to conform with instructions
issued by various departments must familiarize themselves
therewith and be governed accordingly."
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_On May. .9, 1985, Carrier added the following specification to the
charges:
Specification: In that on April 8, 1985, you refused to comply
with the Amtrak Rules and Instructions by reporting an alleged
injury and subsequently refused to follow instructions from
supervisory personnel to give statements or complete the necessary
Amtrak form regarding this alleged injury.
After three postponement, the hearing was held in absentia on June
11, 1985. As a result of the hearing, Claimant was assessed a tenday suspension. The organization subsequently filed a claim on
Claimant's behalf, challenging the suspension.
The organization initially contends that the charges are so
vague that they do not specify what conduct is at issue. The
Organization asserts that this vagueness is intended to allow Carrier
to go on a "fishing expedition" in an attempt to find some type of
incriminating behavior by Claimant. Moreover, the vague charges
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prevented Claimant and his representative from preparing a defense.
Carrier's addition of the specification does not correct this fatal
procedural error. Claimant received the specification 34 days after
the alleged incident; the specification therefore was not timely
under Rule 71. Because of these procedural errors, the Organization
asserts that the discipline should be void ab initio, and the claim
should be sustained. ' .
The Carrier argues that there is no showing that any carrier
action violated Claimant's due process rights or violated any
agreement rules. Carrier asserts that the charge notice and its
addendum sgtsfy the "exact charge" requirement of Rule 71. Carrier
points out that Claimant's representative at the hearing presented an
able defense and indicated no surprise about or inability to
understand the charges. Carrier further asserts that the record
contains substantial evidence to support the finding of guilt; the
assessed discipline was warranted. Carrier therefore contends that
the claim should be denied in its entirety.
This Board has reviewed the evidence and testimony in this case,
and we find that there is sufficient evidence in the record to support
the finding that the Claimant was guilty of the offense with which he
was charged.
With respect to the organization's procedural argument,
although the original charge against the Claimant left something to be
desired, it was soon amended to include the more specific facts of the
alleged wrongdoing; and the Claimant was not prejudiced at all by the
original charge. At the hearing, the Claimant's representative seemed
to know precisely what the charges were; and the Claimant was thereby
in no way injured by the original, somewhat vague charge.
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98(O -a 9
Finally, a ten-day suspension is commensurate with the
offense.
AWARD:
Carrier Member
Date:
v
Chairman, Neutral
ULU/
ployee Member