PUBLIC LAW BOARD NO. 4338
PARTIES) UNION PACIFIC RAILROAD COMPANY
TO )
DISPUTE) BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYEES
OF CLAIM:
(1) The 180-day suspension assessed Sectionman G. S. Hunt for
alleged violation of various company rules, as indicated in Mr.
G. D. Altenburg's letter of October 11, 1991, is arbitrary,
capricious and totally unwarranted.
(2) In light of (1) above, the claimant's record shall be
cleared of the discipline referred to above, and he shall be
compensated for all time lost.
FINDINGS: This Public Law Board No. 4338 finds that the parties
herein are Carrier and Employee within the meaning of the Railway
Labor Act, as amended, and that this Board has jurisdiction.
In this dispute the claimant was notified to attend an investigation
on September 16, 1991 at Nampa, Idaho to develop the facts and
determine his responsibility, if any, in connection with an incident
which occurred on August 23, 1991, near Mile Post 60.95, when he
fell asleep while patroling in Vehicle No. 1915-62501, behind Union
Pacific 2024 North, colliding with caboose and causing possible injury to himself and other employee in hy-rail, and causing damage
to Company property, which indicated a violation of General Notice
(a) and (b) and General Rules A, B, and I, and Rules 602, 607(1),
607(2) and 4045 of Form 7908, Safety, Radio and General Rules for
All Employees, as revised October, 1989, and Rules 1420, 1425 and
1450 as contained in the Union Pacific Railroad Company Maintenance
of Way Rules, effective April 1, 1988.
The investigation was postponed until September 30, 1991. Second
Vice Chairman J. V. Larsen and D. A. White, Local Chairman, BMWE,
appeared at the investigation and represented the claimant.
R. A. Woods, Manager of Track Maintenance at Nampa, Idaho, testified he was called at approximately 1:40 p.m. on August 23, 1991
and advised the claimant had run into the back of the train. He
testified that when he arrived at the scene of the incident, he
commenced his investigation and found that the claimant had been
operating the hy-rail unit 62501 behind Union Pacific 2024 North,
which had a track warrant number 460, and the claimant had a
track warrant number 481, which had a line 9, which gave him the
authority to follow the train to do his inspection.
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Award No.
°54.
Page 2
Track Maintenance Manager Woods testified that he asked the claimant
how he and Mr. Hunt could have run into the back of the train and
both employees stated they had fallen asleep. He testifed that the
claimant said they were going about 15 miles per hour at the time
they fell asleep.
Mr. Woods further testified he sent the car to the section to get an
estimate on repairs, and he was advised that the cost for repairs
would exceed the value of the vehicle itself.
Mr. Woods further testified he took the claimant and Mr. Hunt to
the hospital, and both employees had minor injuries which required
some treatment.
Mr. Woods testified that the windows were down on the vehicle when
he arrived at the scene, and he had the exhaust system checked,
which was found to be in fine condition. He also testified there
was nothing on the hy-rail which would induce drowsiness.
The claimant testified that he had the rear windows up, but he had
the passenger and driver windows down, and the wing windows were
cocked open. He also stated he had gas and grease on the vehicle
which may have caused the drowsiness. The claimant stated he had
hauled gas before but had never had it in the compartment with him.
He stated they had hauled gas and grease like that before.
Employee Boren testified there were some fumes in the vehicle at
all times. Both the claimant and Mr. Hunt stated they believed
the gas fumes and stuff in the back may have caused their sleepiness that day.
The Union contends both men were placed in an unsafe situation by
being assigned a vehicle which should not carry track grease or
gasoline. The Union further contends the Carrier is in violation
of theAgreement by removing the employees from service before the
hearing was held. The Union further contends that the personal
records of the employees should not be entered into the hearing
proceedings.
The Board has studied the entire transcript of record and all of
the evidence submitted. The evidence is insufficient to establish
that the track grease or gasoline fumes, if any, were the cause
of the claimant falling asleep.
As many Boards have held, personal records of an employee may be
introduced into an inviestigation but such may not be considered
in determining the guilt of employees. The only reason for introducing a peisonal recora
of
an employee is to determine the degree
of discipline to be assessed.
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Award No. 54
Page 3
Further the Board finds that under the circumstances herein, there
is no violation of the Agreement when the Carrier holds the employee
out of service pending an investigation.
Although this referee is adverse to long suspensions, it is not in
the authority of the referee to determine whether extended suspensions are proper. The only authority granted to the referee is to
determine if the discipline assessed is harsh, severe or unjust.
Perhaps it should be pointed out that it is to the detriment of the
Carrier, as well as to the employee, to assess long periods of
discipline.
Under the circumstances herein the Board has no authority to set
the discipline aside.
AWARD: C
laim denied.
Preston L,'Moore, Chairman
e'-),
Union Member
9-~6' -
Carrier Member