Sunday, September 10, 2017
Arbitration panel upholds denial of recall because of 13 year old conviction
A Public Law Board including Neutral Joan Parker has rejected a claim that CSX Transportation improperly denied recall in 2014 to a furloughed employee because of his arrest and plea of guilty to a charge of involuntary manslaughter approximately 13 years earlier.
Claimant was furloughed on October 16, 2001. On October 10, 2001, while off duty, he had pointed a gun at another employee and the gun discharged, killing the other individual. Grievant was arrested and subsequently pled guilty. He was released on time served (June 1. 2002 through August 6, 2002) and was required to complete six years probation.
Claimant received a letter dated September 18, 2014, informing his that he was being recalled, subject to a medical exam and a background screening. After completion of the background screening he was charged with violating CSX's rules concerning "Concealment of facts under investigation" and "Criminal conduct that may damage CSX's reputation or that endangers CSX property , employees, customers, or the public." The Union (IBEW) challenged that decision arguing that CSX had waited thirteen years to charge the claimant despite being aware of the incident in 2001, and claiming that the employer's decision was an abuse of discretion.
The Board found that claimant was properly found to be guilty of CSX's charges, and that dismissal was the appropriate penalty. It found no evidence that CSX had been aware of the incident in 2001, but that in any event "even had the Carrier been aware of the events of 2001, it would have had no cause to bring charges against Claimant in relation to those events unless and until he sought to be returned to service -- something he might not have done after being furloughed, so that the matter would never have arisen." The Board also found that Claimant had failed to timely disclose his earlier arrest and conviction. It observed:
Claimant acknowledged that he understood the recall letter that he had received, and thus knew that a background screening would be performed prior to his return to service. Moreover, he called Manager Tim Hill after learning that he had passed the medical examination, and was told by Hill that he had to pass a background screening. An employee with a felony conviction - especially one involving a firearm and the death of another person - must as a matter of common sense, suspect that he will not pass such a background screening. As Claimant acknowledged he did not ask Hill any questions. That Claimant did not discuss his criminal conviction with Hill is both telling and, the Board finds, in itself a violation of Rule 104.4's prohibition of concealing facts under investigation.
The Board's decision can be found here.