PUBLIC LAW BOARD NO. 2766
Parties to the Dispute

INTERNATIONAL BROTHERHOOD OF

ELECTRICAL WORKERS


and
UNION PACIFIC
 RAILROAD COMPANY

 OOTATEMENT Of CLAI1




$ACXGROUND Of TEE CASE
Case NO, 147

 The parties have agreed that the decision fn the instant dispute, On* of many identical disputes prograssad on tae property, will be applied to all such cases now pending. The issue raised is whether employes may voluntarily waive their Contract right to an investigation and accept the-disciplina offered by a

Carrier official. The Rule at the center of this dispute reads in pertinent part as follows:

          Rule 32, Discipline investigations, (a) An employee covered by this agreement who has been in service more than thirty,(30) days, or whose application has been formally approved, shall not be disciplined or dismissed without first being given a fair and impartial investigation by an

... officer of the railroad

On July 1, 1994, Carrier put into effect a comprehensive discipline program entitled "Union Pacific GEnQral Rules for Administering Discipline Effectively." The acronym "UPGRADE" is used to identify the new policy. The following paragraph from the Chairman!s letter to employes contained in the forward of the policy booklet is of interest and is.duplicated here.

          The goal of UPGRADE is to establish a Discipline Policy that is fair, consistent and effective, with an emphasis on corrective action and training rather than on punitive discipline. That goal was achieved during the pilot project. specifically, the UPGRADE pilot was very successful in that d:.scipline in these areas was reduced and understanding of, and compliance with, the rules has increased. Such xesulta complement our efforts in the areas of safety, employee satisfaction and cost control.


The Upgrade Policy contains a discipline assessment table that lists the Rules and the discipline to be assessed for their violations. It also contains a progressive discipline tabIa that demonstrates what level or discipline will be assessed based on

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          the Rule infraction and the past discipline record of offenders. The discipline that can be applied at each level is specified in the policy,. For example, Level 1 m letter at Reprimand; Level 2 = up to one day alternative assignment with pay to develop a corrective action. plant Level 3 - five days off, review rules violated, and.corrective action plan developed upon return to ' _workt Level 4 - thirty days oft, review rules violated and corrective action plant Level 4.5 = sixty days off,. must pass operating rules test before return .to work, corrective action plant Level 5 $ permanent dismissal.

          The policy booklet contains a number of forms that were designed for use by Management personnel when dealing with disciplinary matters. The form most pertinent to this arbitra tion is Form 2 (waiver/Hearing offer):

              [see exact form on page 4.]

                          4 TODAY'S GATE


a-~(~- I Lt I '
 WAIVERIHEARING OFFER FILE NUMBER

 FORM 2

 last Name Fir.t Name t M1 T $oC. See. No.
 Job Title Hire Oat* OapUService Unit Work Location Gang
 Section One Based on the (acts brought forth in our discussion on
 you are allegedly in violation of Rules)
 found in the following Union Pacific Railroad publication(s):
 Check the oppropriate box: -
 a Union Pacific Rules
 0 Timetable
                    Other: (specify)

                In connection with: (describe incident) ~,

Section TWO Under the UPGRADE Discipline Table, the violation listed In Section
 One requires a minimum discipline of LEVEL ,
                Disciplinary action within the past 36 months or since policy effective date, when

Section Three applicable (Rule and description)
                RULE DESCRIPTION OF VIOLATION LEVEL DATI5

                This equates to a current discipline status of; LEVEL

Section Four Under the UPGRADE Progressive Discipline Table, the current violation plus the
 current discipline status require the assessment of: LEVEL
                The violation Did Did Not result in an incident which requires

                assessment of the next higher level of discipline. Therefore, the required

                discipline for this violation Is: LEVEL

Section Five ' O OPTION A: 1, the undersigned Employee, have discussed the alleged
 violatlonts)awith the responsible manager and have been afforded a
                    right to union representation In making my decision to accept the discipline

                    listed above and to waive any rights to a format investigation.

Check the Emptoym< SIGNATURE ---- onrE
appropHate
 box: OPTION 8: 1, the undersigned Employee, have discussed the alleged
                    viotation(s) with the responsible manager and do not agree with the

                    facts or the recommended discipitri8. I understand that a formal investi·,.

                    aeon will be held to review all the facts of hose alle ations.

                Employee SICNATURE -

                -

                - OATE-


MANAGERS SIC"L4TRE
1?J UNION PACIFIC RAILROAD UPGRADE DISCIPLINE PROCEDURES
 . -a-~ jqt
    ' s


          This form is used by Managers to record the incident that was i6volved,'tha Rule violation, and the penalty to be imposed based on the schedule of penalties in the Upgrade Policy. most significant for the purposes of this arbitration is Section 5 of the form. That section contains an offer to affected employes to waive their right to a hearing. and acc®pt discipline. Thus, they agree not to go to formal hearings, as authorized by the Agree ment. The Union in this instance, as well as in the other pending cases, takes the position that Carrier has no right to have an employe waive his or her right to an investigation without the concurrence of the General Chairman.

          Carrier maintains that individual employes can agree to accept discipline and they need not have anyone's permission to do so. The arguments supporting each party's position are as follows.


          ,Carrier

          (1) Employee are not restricted from voluntarily waiving their rights to a disciplinary investigation and accepting the discipline imposed by a Manager. If an employe accepts discipline without resorting to an investigation, it has not bypassed the role of the General Chairman. Carrier recognizes that the General Chairman has the role of representing employes in collective bargaining and does not intan4 to qsurp that authori- _,. ty. An employe agreeing to accept a certain level of discipline

        without an investigation in no way undermines the General chair-

. _ man's authority to enter into collective bargaining with Carrier.
        (2) In the past, the Union often has allowed Rule G violators to, accept the discipline imposed by Carrier in an effort to see these violators retain their jobs. If the Organization can turn its head with Rule G violators who waive hearings because they are going to keep their jobs, there is no sound reason for

        -not doing so in cases where lesser discipline is imposed under, the Upgrade Program. .

            (3) To allow an employe to waive his or her right to a -

        hearing and accept the discipline offered is not to enter into an

        individual contract with that employe. It is not a violation of

        Carrier's obligation to bargain. with an authorized Union repre

        sentative. ,

        (b) The modern and enlightened view of this issue supports the concept .that procedural safeguards, such as an investigation, may be waived by individuals. To force Carrier to convene a hearing when the employs admits guilt is absurd. Employes are made aware that they niay have a Union representative involved if they so choose. It is their choice not to have one present, not Carrier's.

        (5) Carrier has no concern for the Union's desire to obtain a release of responsibility for it at the same tim4 the ampsayc

          ..

to 40. -
    waives his or her right to a hearing.. That is the Union's problem, not Carrier's.

    (6) carrier's position in this case is that the Union has no justification for its position. It allows some employes to waive hearing right , while objecting to others doing so. Rule 32 does not require a hearing if an employs admits guilt.


    The union

    (1) The Union points out that Rule 32 (a) clearly states that an employe shall not be disciplined or dismissed without first being given a fair and impartial investigation.. The onion interprets this to moan that an esnploya shay not waive the application of Rulo 32(a), just as carrier cannot avoid it. Only the General Chairman can agree to waive the terms of Rule 32(a).

    (2) Carrier's Upgrade Policy i5 a schema to circumvent applicable Agreements and the law. The Supreme Court has held that employers cannot make individual agreements with employes that supersede or modify the Collective Bargaining Agreement. To allow an employe to waive his or her rights under Rule 3a (a) is just such a prohibited act.

    (3) Forcing employes to complete the Upgrade Discipline, Procedure Forms is a form of intimidation that should not be allowed.

    (a) When employes were called in to discuss discipline with Carrier officials in the past, they were accompanied by Union

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        tion would take place, a finding would be made by a Carrierappointed Hearing officer, and discipline would be imposed. it the employe was not satisfied with the results, the case would be appealed to the NRAB, a PLB, or a SBA for review. The disciplinary system was under the control of carrier..with an appeal process available to the Union. The bases for appeals were narrow. It carrier performed its responsibility throughout the process correctly, its decisions were seldom overturned or modified.

' There is no question that many cases were appealed that
      never should have bean and that, over the years, millions of

      dollars have been spent and millions of man hours expended on

      these cases., The system is often burdensome and any improvement

      in the system should be welcomed. The fact remains, however,

      that the Upgrade system represents such a major change in the

      procedures that it is inappropriate to implement it unilaterally.

      Sound labor relations dictate that such a major change should

      have the General Chairman's concurrence or that, at the very

      least, there be some procedure in place so that he or his desig

      nee may speak to the employe about the-charges and the impact of

      signing a waiver. At the same time, the General chairman can

      obtain from the employe a waiver that absolves the Union from any

      responsibility in the case.

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          tion would take place, a finding would be made by a carrierappointed Heaiing afficer, and discipline would be imposed. if the employe was not satisfied with the results, the case would be appealed to the NRAB, a PLB, or a SBA for review. The disciplinary system was under the control of carrier,with an appeal process available to the Union. The bases for appeals were narrow. If Carrier performed its responsibility throughout the process correctly, its decisions were seldom overturned or modified.

        There is no question that many cases were appealed that never should have been and that, over the years, millions of dollars have been spent and millions of man hours.expended on these cases.- The system is often burdensome and any improvement in the system should b4 welcomed. The fact remains, however, that the Upgrade system represents such a major change in the procedures that it is inappropriate to implement it unilaterally. Sound labor relations dictate that such a major change should have the General Chairman's concurrence or that, at the very least, there be some precedure in place so that he or his designee may speak to the employe about tha-charges and the impact of signing a waiver. At the same time, the Caneral Chairman can obtain from the employe a waiver that absolves the Union from any responsibility in the case.

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in this instance, Carrier has taken the position that it had
 no interest in the-Union's desire to obtain a 'release from its
 members who decide to take the Upgrade penalties without a
 hearing. This Hoard thinks that this is an erroneous position
 to adopt, one that could cause more problems than the Upgrade
 Policy is supposed to solve.
 ,_, For example, consider the case of an employe who waives a
 hearing at the first four levels of ttse policy and then finds
 him- or herself assessed a Level 5 penalty'as a result or an
 insignificant Rule violation. His past record of discipline,
 together with the new charge, thus supports his dismissal. The
 case goes to a PLB and the Hoard issues a short denial Award.
 The employe goes to his or her lawyer who knows a something about
 labor law and asks the lawyer to get his or her job back. The
 first thing the lawyer does is sue both the Carrier and the union
 for failure to properly explain the implications of the procedure
 and for allowing the employe to agree to waive the investigation
 and accept preestablished discipline.·
 If the Union had-,a statement signed by the Claimant'that he held the Union harmless, at least it would give the Union some leverage in a duty of fair representation case. .The fact that a system was in place for a proper ,discussion between the Claimant and a Union representative would demonstrate that carrier also thinks it appropriate that everyone's rights are protected.
 0'~7(d(v- INl
                              m


          In the railroad industry, the discipline system is under

    - Carrier,Aa control. .It is obligated to operate,a fair and equitable system. Carrier must do everything possible to project an image of fairness. To implement a new policy that makes no allowance for the Unions political or legal needs is wiong.

    Throughout carriers presentation, much was made of the fact that the Union does not contest the fact that a first-time Rule G violator may agree to accept discipline without a hearing, but opposes the procedure in lesser cases. This Board is not impressed with this argument. Social pressure for rehabilitation of alcoholics, certain legal rights, and the Carrier'% desire not to lose a well-trained employe has resulted in practical procedures being developed in this, area. The Union should not be made - a culprit in this instance.

    This Board concludes that employes may waive their right to a hearing under certain conditions and accept a preestablished level of discipline. It does nott however, agree that it can be done without the involvement and agreement of the General Chairman or his designee. :,The potential mischief and injustice that can result from employes dealing with a Manager without representation in a disciplinary matter is unlimited. While employes may think that they know what is best for them in such situations, the chances of agreeing to charges that cannot be proven or

    agreeing because an employe thinks it pieazsthe b'0s2r or agreeing to charges that might, ii challenged, represent dispa-

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_ rate treatment are just a few of the problems that might arise if
        the employe does not have some type of Union representation.

        While it is understandable that Carrier would like to simplify the disciplinary procedure and eliminate as many hearings as possible and still have a positive influence on employe behavior, the method it has in effect undermines the authority of

' "the Union and in some cases -might be unlawful. The more reasoned
        decision a on this issue weigh in favor of,more rights of repre

        sentation for employee, not less.

        It is not this Board's intent that the discipline imposed In the pending cases be overturned or affected in any manner by this decision. Tt is our intent, however, that. the waiver portion of the Upgrade policy not be implemented further until a procedure .is established and in place that allows the General Chairman an opportunity to obtain a waiver relieving the Union of its obliga tions to an employe when the employe Elects to waive his or her right to a hearing.


                                AWARD


                        Claim sustained per the

                        Findings of the -Hoard..


                              R.E. Dennis,

            . Neutral Member


          D.?,. Moresette, - v necak,

          carrier member & y Member


          Data of Approval