Form 1
NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 33958
Docket No. MW-34422
00-3-98-3-25
The Third Division consisted of the regular members and in addition Referee
Stephen B. Rubin when award was rendered.
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(Union PaciticRailroadCompany (former Missouri-Kansas
( Texas Railroad Company)
STATEMENT OF CLAIM:
"Claim of the System Committee of the Brotherhood that:
(1) The Agreement was violated when the Carrier placed a letter of
counsel (employee record indicates a letter of reprimand) in
Trackman M. Mobley's personal record on November 3, 1996
(System File 4-160/1040646-D MKT).
(2) As a consequence of the violation referred to in Part (1) above,
Trackman M. Mobley shall have his record cleared."
FINDINGS:
The Third Division of the Adjustment Board, upon the whole record and all the
evidence, finds that:
The carrier or carriers and the employee or employees involved in this dispute
are respectively carrier and employee within the meaning of the Railway Labor Act, as
approved June 21, 1934.
This Division of the Adjustment Board has jurisdiction over the dispute involved
herein.
Parties to said dispute were given due notice of hearing thereon.
Form 1
Page 2
Award No. 33958
Docket No. MW-34422
00-3-98-3-25
On or about November 3, 1996 the Claimant received the following letter dated
August 5, 1996 and entitled Letter of Counsel from Supervisor T. W. Epperson:
"It has been brought to my attention that on the dates of July 31 & August
1, 1996 you did not report for work or request to be absent from your
assignment. As you know you must contact me personally before the start
of your work shift to secure permission from me to be absent from your
job. You should also understand that if you fail to contact me as instructed
that this is in possible violation of Rule 1.15 of General Code of Operating
Rules dated April 10, 1994.
This letter of counsel will become part of your personal record and
hopefully will reacquaint you with your obligations as an employee to
demonstrate that you can be dependable and responsible and eliminate the
need for any further action."
On or about November 5,1996 the Claimant requested a Hearing on this alleged
discipline. The Carrier denied a Hearing on the grounds that the letter did not
constitute "discipline" as that term is used in the Agreement.
The Organization asserts that the Claimant was denied his due process rights
under the Agreement and specifically was denied the Hearing to which one who has been
disciplined is entitled. The Organization argues that the Supervisor's letter makes a
factual finding that the Claimant had been absent on two dates. The Carrier persists
in asserting that the letter constituted no more than a reminder of the Rules regarding
absenteeism and, as such, was not discipline.
It is unnecessary to resolve the question of whether the purported Letter of
Counsel was in fact discipline. There is no dispute that the first notice that the Claimant
had of the allegations in the letter at issue was on or about November 3, 1996, three
months after the dates of the alleged absences. This three-month delay in giving the
purported Letter of Counsel to the Claimant precluded an effective response by him and
denied him due process under the Agreement.
The letter must be removed from the Claimant's personal file.
Form 1
Page 3
Award No. 33958
Docket No. MW-34422
00-3-98-3-25
AWARD
Claim sustained.
ORDER
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.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Dated at Chicago, Illinois, this 22nd day of February, 2000.