On July 22,1996, Carrier instructed Claimant to report for a Hearing on August 20, 1996. The notice charged Claimant with "being a chronically unsafe employee as shown by your safety record from March 1995 through July 1996. The most recent alleged incident occurred July 19, 1996 at 13:15 hours while working as a Carman on the Waterville Repair Track. You were observed using a torch without wearing proper eye protection." The following day, Claimant signed a letter accepting responsibility, waiving his right to a Hearing, and agreeing to a two day suspension, to be served on July 30 and 31, 1996.
On July 31, 1996, the General Manager Car Maintenance issued a letter to Claimant "confirming our discussion at the meeting held on 7/29/96 . . ." The letter advised that the General Manager had told Claimant that his record of safety observations was unacceptable and would not be tolerated. It stated Claimant's safety failures were mostly of the same Rule, the one governing eye protection. It further advised Claimant that if he continued to disregard the Rule, Carrier might well terminate his employment.
The parties disagree over whether the July 31, 1996, letter was discipline. Numerous Awards have considered the line between non-disciplinary counseling and discipline. A detailed review of the precedent appears in Third Division Award 31489. The Board observed that claims generally are sustained when "supposedly counseling letters accuse the claimants and find them guilty of specific Rules violations," and that claims generally are denied when "letters... merely caution employees concerning their future conduct . . ., even when placed in their files and even if they indicate that future misconduct may result in disciplinary action . . . ."
The July 31, 1996, letter accused Claimant of violating the Eye Protection Rule and found him guilty of the same on an unacceptable number of occasions. Carrier"s contention that the letter was mere counseling is not credible. The letter's accusations were of the same Rule violations for which Claimant had just accepted responsibility and received a two day suspension. The letter constituted additional discipline not agreed to in the Letter of Responsibility that Claimant had signed and imposed without a fair Hearing. There is no question that the claim must be sustained. Form 1 Award No. 13402
This Board, after consideration of the dispute identified above, hereby orders that an award favorable to the Claimant(s) be made. The Carrier is ordered to make the Award effective on or before 30 days following the postmark date the Award is transmitted to the parties.