__ AWARD NO. 125



                          PUBLIC LAW BOARD NO. 4450


        PARTIES TO THE DISPUTE :


        UNION PACIFIC RAILROAD COMP- .NY (Western Region)


T

        BROTHERHOOD OF LOCOMOTIVE ENGLN-EE?RS


        S T ATEVfENT OF CLALM :


            Appealing the Upgrade Level 5 Discipline assessed to Engineer KD Gustafson and request the a xpungement of discipline assessed and pay for any and all time lost with all seniority and vacation rights restored unimpaired. Action taken as a result of fornal investigation held on Viay 30, June 14, and July 21, 2000.


        OPLVION OF BOARD : On May 13, 2000, Engineer K D Gustafson ("Claimant'), a Western


        Region locomotive engineer assigned to Carrier's Portland Service Unit, was assi --ned train IGN AP-1


        3. At approximately 1:35 p.m., in the vicinity of bIP 7.0 (Penn Junction) on the Portland Sub


        Division, he was observed by Manager-Operating Practices (?vIOP) Patterson, in the company of


        Director-Road Operations (DRO) Nua_. to be not wearing eye protection, allegedlywith the windows


        of his locomotive open. On that basis, he was charged with violating General Code of Operating


        Rules reading in pertinent part as follo·.vs:


            Rule 71.5 Eve Protection - Wear Coapany-approved eye protection in all des iggmated areas or when specified by the appropriate department heads. It is not required in: * Office areas and lunch rooms; a .Enclosed-: eh_·cles (inc:udin_ lccc= ·: esj. t

                                            Pea No · 44.5'd


                                            AWARD NO. 125


                                          NMB CASE NO. 125


                                          UNION CASE 20051


                                      COMPANY CASE 233657D


      Rule 71...1 Areas that Reeuire Eve Protection - Safetv Glasses. Wear spectacle-type, 100-percent safety glasses with side shields when on duty at locomotive or car repair, servicing facilities, maintenance of way work sites, shops and facilities. Employees requiring corrective lenses must wear either company-approved prescription safety glasses or coverall-we safety glasses . . . .

Following a three-day hearing and investigation, Carrier found Claimant Qttilty as charged and assessed a Level 2 penalty which. given Claimant's then-current Upgrade status at Level 4, yielded a level 5 termination of employment. At the joint request of the Parties, by letter dated march 25, 2001, the Chairman issued m ---Ipedited decision in this case an two companion cases involving Engineer Gustafson, as follows:


      Case Nos. 123 (Claim de :i°-d);1==(C:a=.a d:^ied):and 1=(Claim sustained): The Level 5 Upgrade discharge of Claimant h D Gustafson mtsr 5e adjusted to a Level 3 Upgrade discipline (30-day suspension without pay), with anendant r-instatcment to service.

Careful examination of the record led this Board to modifythe penalty in this case. As the charging party in a disciplinary matter; the Employer bears the burden of proving, by at least a preponderance of the record evidence, ail the necessary material facts to demonstrate that the Employee committed the transgressions cited in the charge letter. In this case Carrier persuasively demonstrated that Claimant did not have his safety Masses on when he was observed but failed to establish that the windows of the locomotive were open.


2
 PLB uo . 44V AWARD NO. 125 NMB CASE NO. 125 UNION CASE 20051 COMPANY CASE 233657D

 A`VARD
Claim sustained to the extent indicated in the bench decision rendered March 25, 2001.

Dana Edvz-ard Eischen, Chairman.

Dated at Spencer, \e:v York on Sentember 8. ?001


Union Member

          IL


Company Member