the carrier or carriers and Ells: enlpluyee or employees luvulveu III tills ulJllule 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.
The Carrier held a formal Investigation on January 27, 2004 to consider the charge against the Claimant of violating Union Pacific Rule 1.6. Specifcally, the
rSUaFU is reviewing tile ULSIXIINN211 Ul E11C E.lif1111iInE lUF, 111 EnC Li1F11CF J 1135e3Jnlent, raising a truck boom into overhead power lines thereby endangering the lives of other gang members and causing an estimated $50,000.00 worth of damage to Carrier equipment.
The Organization raises a procedural objection and argues that the Board should not even reach the merits of the claim. We disagree. The Organization argues that the Carrier violated the time limits proscribed under Rule 68 of the a
The Organization states the Carrier failed to notify the Claimant of its decision within 15 calendar days because the Investigation was completed on January 27, yet he did not receive the decision letter until February 12, 2004, the 16th day after the close of the Investigation. As has been interpreted in other decisions, such as Third Division Award 36171. the Board finds that the Agreement does not explicitly require receipt within the 15-day time limit. As a matter of fact, most standards of review require such deadlines to ensure one party takes a particular action to notify the other party within a certain amount of time. Surely,
The cases cited by the Organization are misplaced to the extent they address failure of the Carrier to "render" its decision, as opposed to "notifying" the Claimant. In the cited cases, the Carrier actually failed to render the decision within the appropriate timeframe. In this case, the Carrier rendered its decision and put the Claimant on notice by mailing the decision to him within the 15-day time limit and without any impact on the Claimant's Agreement due process rights. Therefore, absent any authority to the contrary, the Carrier's discipline decision should only be overturned on procedural grounds when the Carrier's procedural violations prejn_fliced the Claimant's defense Mr app°al. In this case, we An rt~ Lrtd any such procedural violation; however, even if we found that the Carrier had committed a procedural violation, we would also find that such violation was insufficient, under the facts of this case, to overturn the Carrier's disciplinary assessment of Level 5 discipline for raising a truck boom into overhead power lines.
The Carrier found that the Claimant violated Union Pacific Policy and Procedures for Ensuring Rules Compliance Rule 1.6 (Careless off Safety) which states:
The Carrier provided more than adequate evidence to support its disciplinary assessment during the Investigation. The Board finds that the Claimant demonstrated a reckless disregard for his own safety, that of his fellow gang and the public. To their credit, each responsible employee, the Claimant included, admitted that the gang was not ". . . focused on the power lines being there . . ," ". . . the power lines never came into [their] job briefing . . ," or was individually ". . . careless of [his own] safety or the safety of [other] employees." The Clai .nnt -S awn admission that the power lines were "somewhere in the back of [his] mind," despite the fact that those involved in this incident had been working near these same Form 1 Award No. 38130
,_ _______ ,_.____ r__. ,,__ ___.__ .____ ______.,__ ~________.__,__ _ ____;____ ____,_,___ ooviuuJ, power Hues toy tile Prior two luoucElJ, ueluVUJLraLeJ a JerluuJ, recxleJJ disregard for the seriousness of the safety concerns related to working around power lines. Coupled with a prior safety incident where the Claimant was injured, the Carrier's assessment of discipline for the Claimant does not appear arbitrary or capricious. Accordingly, we find no proper basis for disturbing the Carrier's decision.
This Board, after consideration of the dispute identified above, hereby orders that an Award favorable to the Claimant(s) not be made.