BEFO!m.,§P £,IAL BOARD OF ADJUSTMENT 986
and
Claim challenging the Carrier's dismissal of Claimant Edward Neverez
FINDINGS!
By notice dated May 22 2018, the Claimant was directed to attend a formal investigation on charges that the Claimant had violated the Carrier,s Standards of Excellence pertaining to Attending to Duties and to Professional and Personal Cond ct, as well as Carrier rules relating to tb.0 use of electronic devices in connection with a May 5, 2018, incident, discovered during a May 7, 2018, review of drive cam video, in wJ;i.ich the Grlevant was identified o:o. camera as using an unauthorized electronic device while operating a Canier vehicle. 'The investigation was conducted; after two po:stponement.s, on July 26, 2018. By letter dated August 3, 2018, the Claimant was notified that he had been found guilty as charged. By letter date<;! August 8, 2018, the Claimant was notified
that h<:> :was being dismissed from the Carriet's' service. The Organization thereafter filed a claim on the Claimant's behalf, challenging the Carder'$ decision• to discip1ine him.
The Carrier denied the claim.
The Carder contends that the instant claim should be denied in its entirety .because
SUb$tantial evidence in the record supports the finding of guilt, because the Claimant was
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afforded a fair and impartial investig tiori., because there is no merit or mitigating value to the Organization s assertions, and because the discipline imposed is commensurate with the seriousness of the proven offense, The Organization contends th0.t the instant claim should be sustained in its entirety because the Carrier,s handling of this matter and imposition of clischa:r:ge are not. consistent with the Carrier's handling of recent similar cases following previous Award$ that did not agtee with the Carrier's discharge of employees found guilty of similar infractions, because the Claimant has been treated in a disparately harsh manner compared with two other employees recently charged with use of unauthorized electronic devices who were allowed to continue their employment after serving minimal ot no time and because the di$cipline imposed was harsh and excessive.
The parties being unable to resolve theit' dispute, this matte1· ca e before this
Board,
This Board has reviewed the evidence and t(;)stimony in this case, and we find that
there is sufficient evidence 1n the record to support the finding that the Claimant was guilty of violating Carrier rules with respect to the use·of electronic devices while perfonning services, specifically Rules Alert 2017 02 and the Use of Portable Electronic Devices P/I 3.23.2. The record is clear that the Claim.ant was identified on a video cam.era using an unauthorized electronic devicy while operating an Amtrak vehicle at
10:03 in the mornlng, Various rules prohibit "any ooauthorized use of electt·oriic devices
while operating or riding or moving the equipment," The Claimant admitted his
wrongdoing and indicated that he fa addicted to his cell phone.
. Once this Boal'd has dete,:mlned that there is sufficient evidence in the:recotd to
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support the guilty finding, we next tum our attention to the type of discipline imposed. This Board will not set aside a Carrier1 s imposition of discipline unless we find its actions to have bee,n. unreasonable, arbittary, or capricious,
The Claimant in this case was guilty of a very serious offense. However, the record reveals that the Claimant had no previous discipline over bis ten years of employment with the Canier. Given that lengthy·service that the Claimant has provided for the Cmier, this Board finds that the Carrier acted unreasonably, arbitrarily1 and capriciously wh n it tem1inated the Claimant's employment. The Claimant deserved a lengthy disciplinary suspension, but not discharge. Therefore, this Board orders that the
Claimant shall be reinstated to service:, but without back pay, The period of.time that the Claimant was off work shall be considered a lengthy disciplinary suspension.
AWARD:
The claim is sustained in part and denied in part. The Claimant shall be reinstated to service but without back pay. The period of time that the Claimant was off work shall be considered a lengthy disciplinary suspension..
ED: tl {lLI Ub('l'
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