AWARD NO. 136
NMB CASE NO. 136
UNION CASE 99055
COMPANY CASE 1194517
PUBLIC L ANV BOARD NO. 4450
PARTIES
TO THE DISPUTE:
UV70N PACIFIC
RALLROAD
COMP--~_
(Western Region)
- and -
BROTHERHOOD
OF LOCOMOTIVE ENODVEERS
STATENL'VT OF CLAM:
Appealing the Upgrade Level = Discipline assessed to Engineer J. Apking and
request the ezpunsement of discipli-a assessed andpay for any and all time lostwith
all seniority and vacation rizhts restored unimpaired. Action taken as a result
of
formal investigation held on Au_ust
3, 1999.
OPINION OF BOARD: Following an investigation into charges presented by Manager
of
Train
Operations
M.S.
Leadterbury on
July 25. 1999.
Superintendent Workman issued a notice
of
discipline against Claimant, dated -3u=ust '.1,
1999,
as follows:
While employed as Engineer on Train CSVR-22 at Wendover, Utah, near Nfilepost 306 at
approximately 2331 hours on Julv 22, 1999, you failed to comply with the requirement of a "Yellow
FIa' located at Milepost 310 and you _'ai_ed to have speed of your train under 10 ~IPH, in violarion
of Rules 1.1.2, 1.47 and d.1.? (B) as z ontained in General Code of Operating Rules, effective April
10, 1994
Under the UPGRADE progressive Discipline Table the current violation requires your record be
assessed with a (LEVEL 4) status o: the Upgrade Discipline Policy. A (LEVEL 4) discipline requires
that you serve 30 days without pay and pass necessary annual operating rules or equivalent in order
to return to work. A Corrective Action Plan must be developed upon return to work. Your ;0 day
suspension bean at 12:01 arm. on Jul,.- -3 . 1999, and you may :nark up far duty at 12:01 arm, on
August 22, 1999.
The grounds set forth in the Vice General Chairman's letter
of
August
26, 1999,
appealing
the discipline Claimant, included the following very serious procedural due process objection,
reading in pertinent pan as follows
(Emphasis
added):
"In accordance with the System A s: cell ent-Discipline Rule - and that portion addressing Appeals,
Section 11 thereof. as aarecd to by d:e Union Pacific Railroad Company and the Brotherhood of
Locomotive Engineers (Western Re_=:onl, :ve respectfully appeal the Upgrade Level 4 Discipline
assessed to En_ peer J. Apiking and recues t :he removal of discipline assessed and pay for any and all
time lost :vith nil senierarr and vacaucn -aces restored unimpaired ....
PL (5 AD
. 4 q5V
AWARD NO. 136
NMB CASE NO. 136
UNION CASE 99055
COMPANY CASE 1194517
.. . Among other items regarding this case. we note the fact that Superintendent Workman
actively participated in the so-called efficiency test as part of the testing team and them made
final determination with respect to Upgrade Discipline assessment and FRA revocation of
Claimant's engineer's certification.
Neither in the denial letters on the proper-; nor in handling before this Board did Carrier even
address the undisputed fact that Superintendent 1V orkman was a member of the three-man testing
team and thus passed judgement on his own actions when he made the final determination that
Claimant was guilty of failing the test and issued the disciplinary action against Claimant. That
patent violation of the principles of fairness and impartiality in disciplinary investigations mandated
by the System Agreement-Discipline Rule and the Upgrade Program requires summary reversal of
the disciplinary action in this case. As this Beard had previously held, the LERB decision which
held that this procedural violation was not fatal to an administrative determination concerning FRA
license suspension has no collateral estorpel effect upon our arbitral determination under RLA
Section 3 that Carrier violated the terms of a _ollectively bargained Agreement.
ADZ ARD
1) Claim sustained.
2) Carrier shall implement this Award -.within thirty (30) days of its execution by a
majority of the Board.
Dana Edward Etschen, Chairman
Dated at Spencer, New York on
NL
larch 9, 2002
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Union Men?>!er Company Member
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