Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD

THIRD DIVISION

Award No. 43751 Docket No. MW-44996 19-3-NRAB-00003-180491

The Third Division consisted of the regular members and in addition Referee I. B. Helburn when award was rendered.

(Brotherhood of Maintenance of Way Employes Division (IBT Rail Conference

PARTIES TO DISPUTE: (

(Dakota, Minnesota & Eastern Railroad Corporation

STATEMENT OF CLAIM:

"Claim of the System Committee of the Brotherhood that:

(1) The Agreement was violated when the Carrier improperly entered a letter of reprimand dated January 27, 2017 into Mr. C. Carter's employe file without a fair and impartial hearing (System File B-1734D-204/USA-BMWED_DM&E-2017-00012 DME).

(2) The Agreement was violated when the Carrier improperly entered a letter of reprimand dated January 27, 2017 into Mr. C. Klemp's employe file without a fair and impartial hearing (System File B-1734D-205/USA-BMWED_DM&E-2017-00013).

(3) AS a consequence of the violation referred to in Part (1) above, Claimant C. Carter shall now have the January 27, 2017 letter of reprimand expunged from his employe file.

(4) As a consequence of the violation referred to in Part (2) above, Claimant C. Klemp shall now have the January 27, 2017 letter of reprimand expunged from his employee file."

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.

This case stems from the letter dated January 27, 2017 set forth below, that each of the Claimants received.

"Dear Mr. Carter/Mr. Klemp,

You have failed the Following Proficiency Test GMSVDO - When on January 24, 2017 you failed to have your section truck organized as I found pieces of rail and otheritems intheback ofthetruckthatcould pose as a tripping hazard.

The talk we had over this issue was very productive as we discussed the importance of this safety item.

Craig/Collen, you are a very valuable employee and I sincerely hope you have learned an important lesson from this.

Please let this letter stand as a Caution; future incidents may be dealt with in a Formal matter.

Regards,

Jason Schurman Roadmaster"

By letters dated March 18, 2017, the Organization filed a claim appealing what it characterized as discipline. The claim was properly progressed on the property with no resolution reached and thereafter was timely progressed to this Board for final adjudication.

The Organization contends that the Claimants did not receive a fair and impartialhearing,thattherewasnoadmissionofresponsibility by eitherClaimant,that the Claimants did not use the truck that was supposedly unorganized as it was out of service because of electrical issues and that the letters of reprimand were not inconsequential as they could be the bases for more severe future discipline.

The Carrier insists that Letters of Caution, which these were, have always been considered coaching and not discipline. The Carrier is not restricted from documenting a coaching conversation, which is a fundamental management right and a way to provideclearexpectationstoemployees.TheOrganizationcannotappealdisciplinethat has not been assessed.

The Organization has provided two prior Third Division awards in support of the contention that the disputed "Letters of Caution" constituted discipline. Award no.

23958 in relevant part states that: "In the Opinion of the Board, the letters of caution must be deemed to be disciplinary in nature. Their inclusion in the Claimants' personal record reasonably indicates that they will be used as a base for the imposition of further discipline for future infractions. The Carrier evidently believed them to be disciplinary when it granted the Claimant's request for a hearing" (current Board's emphasis). We find that the case before the current Board is properly distinguished from the abovenoted Award because the Carrier in the current case has not provided a hearing, consistent with its contention that the disputed letters do not constitute discipline.

Award no. 32313 involved a dispute arising from the issuance of a "letter of reprimand." In finding that the letter constituted discipline, that Board focused on the reasoning

"found in the particular and peculiar language which was used by the Supervisor who composed and issued that letter. Not only did the Supervisor cite the rule which he felt the Claimant had violated, but also he clearly stated that the Claimant had violated the rule and issued not a letter of warning or a caution that future derelictions might result in formal discipline, but rather he issued a 'letter of reprimand' which he said 'will be kept' in your personal file. He did not indicate that the letter of reprimand would serve as a caution against future infractions."

The facts set forth in Award no. 32313 also may be distinguished from the facts in the instant case, which involves a cautionary letter rather than a Letter of Warning. The Claimants in the case now under consideration were said to have violated a proficiency test but not a rule related to discipline. This Board does not find that the inclusion in the cautionary letter of the statement that "Future incidents may be dealt with in a Formal manner" turns a caution into a letter setting forth discipline. Moreover, the Organization has not shown that the letters issued to the Claimants were a departure from past practice. Thus, the Board does not find that the Claimants were disciplined.

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 16th day of July 2019.