Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 37267
Docket No. MW-37866
04-3-03-3-207
The Third Division consisted of the regular members and in addition Referee
Steven M. Bierig when award was rendered.
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(Union Pacific Railroad Company
STATEMENT OF CLAIM
:
"Claim of the System Committee of the Brotherhood that:
(1) The discipline iLevel 3 with five (5) day suspension] imposed,
without a fair and impartial hearing, upon Mr. P. Silos for alleged
violation of Union Pacific Rule 70.3 on December 14, 2001 was
arbitrary, capricious, on the basis of unproven charges and in
violation of the Agreement (System File W-0248-156/1317888).
(2) As a consequence of the violation referred to in Part (1) above,
Mr. P. Silos' record shall be cleared of the Level 3 discipline and
he shall be paid for all lost compensation for the five (5) days he
was withheld from service."
FINDINGS
:
The Third Division of the Adjustment Board, upon the whole record and all the
evidence, lands that:
The carrier or carriers and the employee or employees involved in this dispute are
respectively carrier and employee within the meaning off the Railway Labor Act, as
approved June 21, 1934.
This Division of the Adjustment Board has jurisdiction over the dispute involved
herein.
Form 1 Award No. 37267
Page 2 Docket No. MW-37866
04-3-03-3-207
Parties to said dispute were given due notice of hearing thereon.
The instant incident occurred on December 14, 2001. The Carrier initiated
discipline for said incident when Supervisor D. Wengler contacted the Claimant on
December 21, 2001 and instructed the Claimant to report to his office. It is apparent
that the Claimant did go to Wengler's office. At that time, the Claimant signed a
waiver acknowledging receipt of discipline, but did not affirmatively indicate in writing
that he was rejecting the discipline. However, the Claimant verbally informed
Supervisor Wengler that he intended to reject the discipline.
The crux of the matter is whether the Claimant waived his right to a formal
Investigation when he allegedly failed to notify the Carrier in writing of his rejection of
the discipline within 15 days of notice of the proposed discipline.
Rule 48(a) of the Agreement states in pertinent part:
"Discipline will be considered accepted if formal rejection is not
received within fifteen (15) calendar days from the date of receipt of
Carrier's letter."
According to the Carrier, the Claimant failed to formally reject the discipline
and request an Investigation within the required 15 days as mandated by Rule 48.
Therefore, the Carrier asserts that his right to an Investigation was waived.
Conversely, the Organization claims that the Claimant effectively requested an
Investigation when he verbally informed Supervisor Wengler of his intent to reject the
discipline, contractually requiring the Carrier to conduct an Investigation.
We reviewed the matter and note that the burden is on the Organization. On
December 21, 2001, the Claimant signed the "Receipt of Hand Delivery" portion off the
Waiver form. However, the Claimant failed to sign that portion of the form indicating
rejection of the discipline and request for Investigation. While it is uncontested that the
Claimant verbally informed Supervisor Wengler of his intent to reject the discipline, we
cannot find that- the Claimant prepared a formal rejection as required by the
Agreement.
The Rule regarding formal rejection of discipline was clearly enunciated in
Third Division Award 32200:
Form 1 Award No. 37267
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04-3-03-3-207
"Second, the Carrier pointed out, without dispute by the Organization,
that since the Carrier and the Organization revised the discipline Rule,
`formal' rejection has always been considered to be the signing of the
proposal waiver .... Third, if `formal rejection' can be indicated by a
phone call or a conversation, what would be the definition of an
`informal rejection?' Logic supports the position of the Carrier."
As noted above, in a Rules case, the burden is on the Organization. We find that
the Claimant did not prepare a formal rejection of the discipline, but instead only
verbally rejected the discipline. A verbal request for Investigation is insufficient to
trigger an Investigation. Therefore, we cannot find that the Organization met its
burden of prooff and we reject its position.
The claim is without merit. It will be denied.
AWARD
Claim denied.
ORDER
This Board, after consideration of the dispute identified above, hereby orders that
an Award favorable to the Claimant(s) not be made.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Dated at Chicago, Illinois, this 5th day of November 2004.