UNION CASE NO. PR-VASQUEZ, M. J.-90

                          COMPANY CASE NO. 9001970


PARTIES TO THE DISPUTE:

 Union Pacific Railroad Company (Western Region)

      - and -


Hroth=rhood of Locomotive Engineers
STATEMENT 07 CLAIM:

    Request the expungement of 31 day actual suspension of Engineer M. J. Vasquez and pay for all time lost.

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OPINION OF BOARD:
Engineer M. J. Vascuez (Claimant) has been in service with
 Carrier for some 17 years. As of August 1990 he was working on
 the Engineers Extra Board at Las Vegas, Nevada, subject to call
 by Carrier's Crew Management Service (CMS). Train and engine
 employees at this location war= su ~ecw ~o ._e _o _ow_ng
 managerial policies regarding missed calls:
    ?.NY TTZa7N?L"-i.''1 OR FNC- ~g _N 'NHO MTSSED A CALL, OR

    WHO IS REPORTED BY CMS AS rA~VING MISSED A Ca:_L, MUST

    CONTACT A LOCAL MANAGE? TRAIN OPERATIONS, OR MAINAGER

    OPERATING PRACTICES W=TR=N 43 HOURS.


    W. S. NUA 333-9270 _

    M. 0. LODGE 385-9259 OR 254-1201

    W. L. MILTON 383-9292

    G. G. ESCALA-NTE 30^0-9231


    W. L. MILTON

    MANAGER OF TRAIN CPERATIONS

    CC: AAC GGE WIuu DMS MOD WSN

    POST: TRAINMEN'S AND F~NGINEMEN' S NOTICE, BOORS


        MILFORD, LAS V=GAS, AND YERMp.

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                          COMPANY CASE N0. 9001970


CALIFORNIA DIVISION SERVICE UNIT

GENERAL NOTICE NO. 080

LOS ANGELS - AUGUST 23, 1990


      T0: ALL T. E. & T. EFIA-PLOYEES:


              GENERAL NOTICE NO. 22 WAS IMPLEMENTED ON JANUARY 19, 1990 IN ORDER TO REDUCE MISS CALLS. IT WAS NOT DONE S0. THEREFORE A MORE STRINGENT POLICY SEEMS IN ORDER.


          1) CANCELLATION NOTICE:


              CALIFORNIA DIVISION G=NR.a-L NOTICES N0.

              33 AND 79 ARE C~NCELT ED. NO. 79 1-= IMPROPER

    - DATE OF ISa:_.


              2) EFFECTIVE I?ED>A'1LY, T::... FOLLOWING POLICY WILL APPLY R=G?.RDING '° MISS CALLS" .


                  FIRST MISS CALL - LISTEN OF REPRI?i]_ND I S SENT


                  SECOND MISS C?LL - 30 DAYS DEFERRED SUS2°NSION


                  THIRD MISS CALL - 31 DAYS ACTUAL SUSPENSION


                  FOURTH MISS CALL - DISMISSAL


              EMPLOYERS WILL C=.R THEMSELVES FROM THE PROGRESSIVE CYCLE, UNLESS IN DISMISSED STATUS, 17 THEY MAINTAIN ONE YEAR FREE OF "MISS C??LS" -70LLOWTNG DISCIPLE FOR THE FIRST OR SECOND 11'W7SS CALLS" OR FOLLOWING THE SERVICE OF ACCUMULATED SUSPENSION TIME RELATING TO A "MISS C.=LL".


                        TONY CET ACON

                        TRANSPORTATION SERVICES


      At about 5:00 p.m. _= to aft==noon c° A,~2gust 9, 1990,


Claimant called CMS and learned t'.-:at he stood ninth out. He

 anticipated that with nc=.yal work --Flow .^.e WCuld prODal:ly get out

 by mid morning on August 10, 1990. Apparently Claimant left his

 residence on the evening ,._ ._ ~~st 9, 1990 and d?d ..,.t _ Burn
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until after 1:00 a.m. on August 10, 1990; but he later testified that he had with him the pager or beeper which he is required to monitor while subject to Call. Apparently there was a greater manpower need than usual, because CMS called Claimant at 1:00 a.m. on August 10, 1990. He d4_d not answer his home talephone nor did rlaim?nt make n call-back ?.-,c-onsa to `'^c ·~
 When claimant lea=ned that he had missed a call, he telephoned Manager A. .c.. N'.:a at th2 ni:=_~Zr listed on the a~cvs

 p01.y circular. T'1'c' .c '-.- eren by an answering
    j_C'~n _ was answered c,.

machine and Claimant left a message that he had missed a call.
 Carrier's neXt action, hCWevcr, was a letter of August 14, 1990
 from Superintendent Chacon, notifying Claimant as follows:

    "Under the proVisions of Rule 135 of the Agreement between the Union Pacif_c Railroad Comoanv and the Brotherhood of Locomotive Engineers, effective April 15, 1972, this is to advise that your personal record is being assessed with 31 days suspension, to be served, for your responsibility in missing call to perform service as Engineer on Job NPI,21Z on August 10, 1990, at 0100 at Las Vegas, Nevada, in violation of General Rules A, B, D and operating Rules 600, 604, 607 and 619, as contained in the General Code of Operating Rules effective October 29, 1989.


    If advice is received that discipline is not acceptable, hearing w,_11 be scheduled as outlined in your agreement.


    In checking your personal record, I find that you

    were assessed a 30 day suspension, to be deferred,

    under data of Mare. 27, ,990, and it will now be

    necessary that you serve the 30 days deferred,

    including the 31 days actual. This suspension will

    commence on August 27, 1990 and you may mark up for

    work on October 27, 1990. Any rules or physical

    exam=-at_Cns due muS= be taken prior to vcur 7Iia=k=-g uD

    o^ _i^ I, s .;_ ° Fa_l,ure t^ r°_^ .-i o duty


    w'thi

        --n ten (1 (]j X3'75 from t:12 above Gate W~11 -=Slat 1n

    your ^e_ _J COPS:dcre_ a- '-sent "Cm CC`T,i W1 =_^_Cl:=

    ..-., . acir.,n (.- -.;._,.._ reCCri will :e .iand_ed aCCCrd_nI-7,tt

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Claimant and the BLE rejected the prcpesed 61-day actual suspension and recsested a hearing. At the hearing, Claimant testified without contrad`_ct'_on that he had telephoned Manacer Nua and also presented ancontr-_verzed written ev==ence that he had missed the call because '-,is pager was defecti-re.

 Claimant presented the faulty pager f,._ _e=air on Au'-:V_,st 10,
 1990, after 1 earning

      "D. ?i. Daly: 7xh__-=_ Nc. _ dated A'LT=st 10, _990. This is a return Lease =-,__mment T4-_8721, from Centell Phone Company in Las Vegas, Nevada stating that 23r. Vasquez, at the time of the alleged miscall, had a faulty pager, and exchan-ed for a repair of a new pager. Mr. Escalante, _f you would like to review that.


      G. G. Escalante: Indica=_ng that 8/10/90, Return Lease Equipment of a faulty pacer was exchanged for re=airs and Sharp Roll, CC?O s=;=red it.

M. O. Dodge: I will mark as exhibit nc. 1 the Return Lease Equipment that `rcu referred to Mr. Dalv.°' Claimant's urrebutted evidence notwithstanding, Carrier immlemented the 61 day actual suspension, '_-, imposed a 31-day actual suspension for the "triage=ing incident" Of August 10, 1990, which activated a prav·_cusly deferred suspension based upon the following record:

              '111-23-89--LETTE~R O? W=ING. Missed a call to deadhead t: °_e="mo a= 013'0 Nove'r' er 26th.


      03-20-90--LETTER OE WA?3TI=iG. Missed a call to deadhead

      to Yermo aL 12:01 PEI March 20th.

      ~3-2i-90--30 Dc`T D.=,_ ._~ SUS?~'75_::i7. _`!=SSed a cc:_


                  e 7 .`. ' _

              zcr ~__. A_ _~ am 0100 :ea=ch 2--rd.

r

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        There is no question that Claimant was a recidivist with a recent history of missed calls. If he had been proven culpable for August 10, 1990, the penalty imposed would not be disturbed by this Board. But carrier has the overall burden of persuasion of guilt of the "triggering incident°. Carrier must shoulder this burden without the benefit of any assumption :.hat Claimant "did it again". When all is said and done, carrier has not sufficiently rebutted cr d=scred_ted Clalmantrs evidence t-=- the missed call of August 10, 19:0 bias attributable to a faulty pager


- and not directly his fault. Although the case is a close one,
        the burden of proof and the presumption of innocent until proven

        guilty require us to reverse Carrier's finding of culpability and


        to sustain this claim. _

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                                AWARD


          1) Claim sustained.


          2) Carrier must e:>punge the 31-day actual suspension for the


      improven allegations regarding August 10, 1990 and also reverse


__ the 3o-day actual suspension triggered by the findings relative

      t0 AUc

      rust 10, 1990. Thus, Carrier must make Claimant whole for the 61-day actual suspension imposed Au^ust 27, 1950.

      3) carrier shall implement this decision within 30 days of its exacution by a majority of tae Board.


                      Dana Edward Eische-'--C~

              Dated at Ithaca, New York on


      Union Member Company Member

      Dated at -Z), e C -27 I Dated at

      on