NATIONAL MEDIATION BOARD
PUBLIC LAW BOARD NO. 6402
AWARD NO. 163, (Case No. 184)
BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES
DIVISION - HIT RAIL CONFERENCE
vs
UNION PACIFIC RAILROAD COMPANY (Former Missouri Pacific
Railroad Company)
William R. Miller, Chairman & Neutral Member
T. W. Kreke, Employee Member
K. N. Novak, Carrier Member
Hearing Date: February 23, 2011
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood that:
1. The dismissal of Machine Operator E. D. Fedon for violation of GCOR
Rule 1.6 (Conduct - Part 3 - Insubordination) in connection with his
failure to follow the instructions of Track Supervisor B. Green on June 24,
2010 is unjust, unwarranted, based on unproven charges and in violation
of the Agreement (System File UP-218-WF-10/1536483).
2. As a consequence of the violation outlined in Part 1 above, the charges
against Mr. Fedon shall be dropped and he shall be reinstated with compensation
for all lost time including straight time and overtime and all other rights due
him under the Collective Bargaining Agreement."
FINDINGS:
Public Law Board No. 6402, upon the whole record and all the evidence, finds and holds
that Employee and Carrier are employee and carrier within the meaning of the Railway Labor
Act, as amended; and that the Board has jurisdiction over the dispute herein; and that the parties
to the dispute were given due notice of the hearing thereon and did participate therein.
The record indicates that the Claimant entered the service of the Carrier on January 26,
2004, and on the date of the incident was working as a Machine Operator.
On June 30, 2010, the Carrier advised Claimant to appear for a formal Investigation on
July 14, 2010, concerning in pertinent part the following charge:
"...to develop the facts and place responsibility, if any, that on June 24, 2010,
at morning Job Briefing you were allegedly insubordinate to Mr. Brandon Green,
f
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P.L.B. No. 6402
Award No. 163, Case No. 184
Page 2
Track Supervisor, when he told you on three (3) occasions to put down your
cell phone and participate in morning warm up to work exercises.
These allegations, if substantiated, would constitute a violation of Rulel.6,
Part 3 (Insubordinate), as contained
in
the General Code of Operating Rules,
effective April 7, 2010. Please be advised that if you are found to be in violation
of this alleged charge the discipline assessment may be a Level 5, and under the
Carrier's UPGRADE Discipline Policy may result in permanent dismissal."
On July 29, 2010, Claimant was notified that he had been found guilty as charged and
assessed a Level 5 and dismissed from service.
The skillful arguments of the respective parties need not be reiterated in this instance as
the question of Claimant's alleged guilt has become academic because in Award No. 162, Case
No. 183 (which is a companion case involving the same Claimant) the Board found that Carrier's
decision to dismiss Claimant was appropriate. Therefore, the Board finds and holds that the
dismissal in Award No. 162 cannot be overridden and
the
question raised in the instant case is
now moot, thus, the Claim is dismissed.
AWARD
Claim dismissed.
William R Miller, Chairman
K. N. Novak, Carrier Member T.~ ' else, mployee Member
Award Date:/~'