Mar-21-03 01:USIY
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AWARD NO. 147
NMB CASE NO. 147
UNION CASE NO. 20149
COMPANY CASE N0.1281108
PUBLIC LAW BOARD NO. 4450
PARTIES TO THE DISPUTE:
UNION PACIFIC RAILROAD COMPANY
(Western Region)
- and -
BROTHERHOOD OF LOCOMOTIVE ENGINEERS
STATEMENT OF CLAIM:
Appeal the Upgrade Level 5 discipline assessed to Engineer R. D. Hoverson and
request the removal of discipline assessed and pay for any and all time lost with all
seniority, vacation, and all other rights restored unimpaired.
OPINION OF BOARD:
As a result of an investigation conducted on September 14, 2001, Claimant was assessed a
Level 2 discipline for alleged violations of various Rules in connection with an "efficiency test" on
September 8, 2001. Because he was already at level 4, the discipline was 'lrpgraded" to Level 5 and
Claimant was notified of his dismissal from service. During subsequent appeals, however, Carrier
offered and Claimant accepted a reinstatement without prejudice to progression of the instant claim
for make-whole monetary damages in arbitration before this Board.
It is not disputed that Claimant was called by a Union Pacific Railroad crew dispatcher for
service on an OBAGR train, on September 13, 2001, at 1700 hours . At that time, the Crew
Dispatcher then read him a "Notice of Investigation", which had been mailed from Portland, Oregon
on September 12, 200l,instructing him to be at the formal hearing and investigation the next
1
AWA.IRD NO. 147
NMB
CASE
NO. 147
UNION CASE NO.
20149
COMPANY CASE N0.1281108
moning at 9:00 am. on September 14, 2001.
Claimant laid off and attended the investigation, and Claimant arid
his BLE
Representative
were handed a copy of the Notice of Discipline at 9:40 a.m. on September 14,
2001,
after the
Investigation had commenced. The Hearing Officer proceeded over objections by the Organization
that service of the Notice of Discipline was atally defective. Carrier thcreafter found Claimant
guilty as charged of Rules violations while :vorlcng on a famiiiarizaticn nip as znaneer berxeen
Narrpa, Idaho and La Orande, Ore-2m on Train IG2SE-C6, with crew members R. D. PayaW=t
,%vorking as Engineer Pilot, and Conductcr Alan Ashley in an efficiency test near Milepost 398.9
near Union Junction, Oreson.
The
Svstem
a
yeement - Discipline Rule , Section 3 plainly and unambipously requies
timely, specific written, as follows:
NOTICE:
=. Within 10 days of $e'iss the appropriate company Cti"r stew or should have loan
of an alleged offense, :he engineer ·rnll be given %rinen notice of the specific charges against him or
her. The notice
will
state :he tune and mace of the investigation and
will
be :uroishd sufficiently in
advance to allow the engineer the opportund:y to arrange for representation
by a BLE
representatives)
(the
BLE Local
Chaurran or other elected
3LE Officers)
and witnesses. The notice
will
propose
discipline to be assessed if investigation is waived and designate a carrier officer
who
nay be
contacted for the purpose of arranging for an informal conference on the matter. A copy of the notice
will be
furnished to the
BL? Local
Chairman.
The?raven failure to comply with this requir went, which deprived Claimant and tire Organization
of contractual due process rights guaranteed by the
System Agreement - Discipline Rule, was
tulmiagated .rid ultimately fatal to Came-'3;,s assessment of discipline in this case.
See PL B 4450,
Award 1-4.
AWARD NO. 147
NMB CASE NO. 147
G'MON CASE X10. 20149
COMPAW CASE N0.1231108
AWARD
1) Claim sustained.
2) Carrier shall implement this Award within thirty (30) days of its execution by a
majority of the Board.
Dana Edward Eischen, Chairman
UnianMember
Company 1fe:nber