On August 15, 1998 while the Gang was surfacing track between Sugarland and Rosenberg, Texas, the Carrier alleges that the Claimant "failed to maintain and lubricate Ballast Regulator BR1745, resulting in damage to the transmission," thereby violating Union Pacific Rule 41.2.
Following a September 14, 1998 Investigation, the Claimant was found guilty as charged, and assessed a Level 2 Discipline requiring the Claimant to attend a one day alternative assignment, with pay, to develop a Corrective Action Plan.
The Organization protested the discipline, maintaining that the Carrier had "unilaterally" postponed the Investigation that was originally scheduled for September 9,1998. The General Chairman further maintained that the Claimant was not afforded sufficient time to train on the BR1745. In that connection, however, the General Chairman asserts that the Claimant did property maintain the equipment, and noted doing so in his log book
Finally, the Claimant contends that commencing June 1 to August 6, 1998, he "periodically" notified Foreman Hayes of leaks in the transmission of the BR1745, and also advised his Foreman that the transmission did not shift properly in an of the gears.
For its part, the Carrier contends that the Claimant was afforded a fair and impartial Hearing during which there was "more than sufficient evidence" to warrant sustaining the charges brought against him. The Carrier further contends that the assessed discipline is commensurate with the extensive damage caused by the Claimant's negligence.
A review of the record demonstrates that the Claimant received a fair and impartial Hearing, thereby rendering the procedural arguments advanced by the Organization without merit.
Turning then to the merits of the dispute, Rule 41.2 - OPERATORS - sets forth the following:
The Claimant asserts that he proper) maintained Ballast Regulator BR1745 and that he reported "the leaks several times a day. However, MTM Floras reported that when he inspected the BR1745 on August 15, the Regulator had "run out of oil" and "burned up." Form 1 Award No. 35986
Further, and in that connection, it is not disputed that on August 7, approximately one week prior to the time this issue arose, the shifting fork in the gear boa of the BR1745 had to be replaced due to "lack of proper lubrication."
Although the Claimant asserts that he properly logged the "problems" associated with the BR1745, Mechanic J. Morris reported that the Claimant's log entry(s) indicated that everything was "okay" and there were "no problems" with the equipment. Mechanic Morris went on to state that had the BR1745 been "properly maintained," the damage would not have occurred.
Finally, regarding the Claimant's training period, Mechanic Morris testified that he personally instructed the Claimant on August 6, 1998 with respect to his responsibility for checking and filling the oil levels on the machine he was operating and instructed him on how to do so. Of note, according to Morris' uncontested testimony, he installed six and one-half quarts of transmission fluid on August 7, 1998, the day after he had instructed the Claimant regarding same.
In discipline cases such as this, the Carrier bears the burden of proving that the misconduct for which the employee was disciplined occurred. In these circumstances the Carrier has proven, by substantial record evidence, that the Claimant was guilty of the charge of violating Rule 41.2 and the discipline assessed was reasonable and in accordance with the UPGRADE discipline policy.
This Board, after consideration of the dispute identified above, hereby orders that an Award favorable to the Claimant(s) not be made.