"1. That the Southern Pacific Transportation Company (hereinafter referred to as Carrier) violated Rule 34 of the Current Controlling Agreement between the International Association of Machinists and the Southern Pacific Transportation Company dated April 15, 1967, as subsequently revised and amended when it harshly and unjustly placed a letter of discipline dated February 6, 1991, on the personal record of Machinist C. Chavez (hereinafter referred to as Claimant) account his alleged violation of Company Rules 801 and 802, without first holding a formal investigation to determine the facts.

2. That the Southern Pacific Transportation Company remove from Machini:at C. Chavez's personal record the February 6, 1991, letter of discipline and clear his service record of all references to the incident."

On January 26, 1991, the Claimant was employed as a Machinist at the Carrier's Houston, Texas Locomotive maintenance plant with approximately six-and-a-half years' seniority. On that date, he was called into a meeting by the Carrier's General Foreman to discuss certain items he had reportedly overlooked while inspecting Engine Units SP 7793 and SP 4813, as well as to review Carrier's Rules 801 and 802 for its Mechanical Department employees. The Claimant's representative was present during the meeting, during which the Claimant reportedly explained the oversight in his inspection as due to the supervisors' pushing to get units off the tracks and to his not being properly informed.

The Carrier subsequently summarized the above meeting in a letter dated February 6, 1991, which was signed by the Claimant and initialed by the Plant Manager, and placed in the Claimant's personal file. Following the Organization's February 17, 1991, protest of the Carrier's placement of the letter on the Claimant's personal record, the matter was appealed on the property up to and including the Carrier's highest designated officer and was docketed before the Board for final adjudication.

The Carrier's February 6, 1991, letter also_cited portions of Rules 801 and 802 as follows:

"Rule 802 (that part reading) : In difference to duty, or the performance of duty will not be condoned.

Rule 801 (that part reading : Employees will not be retained in service who conduct themselves in a manner which would subject the railroad to criticism and any act of willful disregard or negligence affecting the interests of the company is sufficient cause for dismissal."

"This letter is being written to you, on an educational basis, to confirm your understanding of rules 801, 802 and to express our concern regarding your work performance. A copy of this letter is being placed on your personal record.

You were informed that employes who may be proven to be in violation of Rules 801, 801 [sic] through investigative procedures (per Rule 34 or 24 of the controlling agreements), are subject to discipline which may result in permanent dismissal."

The Organization prote=sts the placement of the above letter in the Claimant's personal file on the basis that the Carrier had administered discipline without benefit of an Investigation and alleges that the Carrier is in violation of Rule 34 of the Agreement. It characterizes the content and tone of the letter as accusatory and disciplinary in nature and alleges that the placement of the letter in the Claimant's file assures that the Claimant would be treated as a "second offender" under a progressive discipline system, since anyone reading the February 6, 1991, letter would conclude that the Claimant was guilty of violating Rule 802. It asks that the Carrier be directed to remove the letter from the Claimant's file.

The Carrier portrays both the January 26, 1991, meeting with the Claimant, and its subsequent February 6, 1991, letter as educational. It points out that the Claimant's signing of the letter confirms the letter's substance. It asserts that the Organization has failed to show that the Carrier first pronounced guilt against the Claimant and then assessed him discipline and therefore has not proven that the Carrier's letter is disciplinary in nature.

The Board has examined the entire record, particularly the Awards cited by both parties in support of their positions. In Second Division Award 941,2, involving a signed memo placed in the Claimant's personnel file that stated that the Claimant had been counseled for violating Rule 802, the Board directed that the memo be removed from the file. In Second Division Award 7588, the Board was persuaded that a letter put in the Claimant's personnel record that recorded a meeting with the Claimant at which his failure to comply with a foreman's instructions was discussed, and that warned him that insubordination would result in disciplinary action, "amounted to an imposition of discipline without affording the employee the contractual rights he is guaranteed by Rule 34."

As in Second Division Award 12514, the Board finds that the placement of the letter at issue in this case in the Claimant's personal file is tantamount to taking disciplinary action. The letter summarized a meeting at which performance deficiencies were discussed and Rules 801 and 802 were reviewed. The letter itself cited portions of Rules 8i)1 and 802 and noted that the Claimant had been informed that violations of those Rules could result in discipline, including permanent dismissal. In the words of the Board in Award 7588, "[n]ot only is the letter itself disciplinary in nature, but its placement in Claimant's file practically assures that he would be treated as a 'second offender' under a progressive discipline system should [the] Carrier, in the future, bring him up on charges, find him guilty and decide to impose discipline under Rule 34." The Board accordingly sustains the claim.