C:\AWARDS\IN\PLB4450-93.htm

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PUBLIC LAW BOARD NO. 4450

AWARD NO. 93 NNIB CASE N0. 93

UNION CASE NO. 02095C COMPANY CASE NO. 9501107

PARTIES TO THE DISPUTE

UNION PACIFIC RAILROAD COMP -\N-Y

(Westem Region)

- and -

BROTHERHOOD OF LOCOMOTIVE E.'\,CL1-EERS

STATEMENT OF CLAIM:

Appealing the L~'t GRADE Level 4 Discipline of Engineer R. M. Spears and request the expungement of discipline assessed and pay for all lost time with all seniority and vacation rights restored unimpaired. Action taken as a result of investigation held October ? 5, 199-4

OPINION OF BOARD

: Based upon an incident of passing a stop signal, which occurred on October 17, 1994, Carrier cited Engineer R. 7vI. Spears for alleged Rules violations and proposed Level 4 disciplinary action. There is some dispute about the propriety of the Notice of Charge not including the Form 3 but because this case also suffers from.: other basic and fatal procedural defects, we will not comment further on the Form 3 aspect of the case.

The Parties mutually consented to postponement of the hearing until 3:00 PM of October 25, 1994, and the hearing was held and completed that day. However, Hearing Officer 1. S. Maughan did not issue the following Notice of Discipline until November 18, 1994, well beyond the ten (10) days required by the System Discipline Rule:

'AFTER REVIEW OF THE EVIDENCE ADDLCEDATTHE HEARING HELD IN SALT LAKE CITY. UTAH .AT I?:00 P.VI. --UESD?.'.·' OCTOBER 25.199=. : FrND YOU RESPONSIBLE FOR FAILURE TO COMPLY WIT:-! RESTRICTED SPEED AFTER PASSING STOP SIGN.-\L DISPLAYING STOP AT WEST %IIDVALE, UT?.H ON THE SOUTHERN PACIFIC MAIN L!NE. THIS RESULTED IN YOUR TRAIN RUNNING THROUGH .AND DAMAGING THE WEST CROSSOVER SWITCH NOT PROPERLY LINED 1L~,R MILE.. FJST-=5.9 ON SUBDIVISION 6.

Pea No.

yysa

AWARD NO. 93

NMB CASE NO. 93 UNION CASE NO. 02095C COMPANY CASE NO. 9501107

THIS OCCLRRED.4TAPPRO:SL-\'t ELY _::0o 0\ ~tONa-%Y OCTOBER i ', 1994 WHILE YOU

WERE PERFORMING SERVICE AS ENCI\'EERON THE CSRVY-17.

THIS IS IN VIOLATION OF RULES 6._-.AND 5.31 AS CONTAINED IN THE GENERAL CODE

OF OPERATING RULES EFFECT!\-E.-4'i:= !0, 1994. YOU ARE THERE-'OREASSESSEDA

LEVEL SIN THE UPGRADE POLICY `I: r C' H'XAS EVIDENCED ON THE PREVIOUSLY SENT

UPGRADE FORM.

A LEVEL 4 DISCIPLINE ADDED TO 'H= LEVEL _ DISCIPLINE YOU HAVE PREVIOUSLY RECEIVED RESULTS IN .A L E\'E= - DISCIPLINE WHICH IS A 30 DAY SUSPENSION WI-ROUT CONIPENSATIGN `A'H'.C.'-:: _-C:.:\IENCED ON OCTOBER :9, 1994..."

BLE Local Chairman Ellefsen made ti-mely appeal, by letter to Superintendent Bearden dated December 26, 199^-. Among other items. :hs Local Chairnan took e:-~ception to the timeliness of

the Notice of Discipline not being issued i_^. accordance with BLE South Central District Rule 136:

"1-Engineer Spears did not :ec.iN-:he notification of discipline with the

day

suspension within the prope: .a -arise of 10 days as required by the agreement

between the Union Pacific Railroad and the Brotherhood of Locomotive Engineers

of April

15, 1973

as rule

136

recur°s. He received a letter dared November

1 S,

1994

from M.T.O. Jeff Maugha" °%=iainiro he was beir-a assessed a level

--1

with

a 30 day suspension which ryas -= da-: s after the hearings, and :which he received

on or about November == 99= :v-ich was

days after the hearing. I attach a

copy of the Salt Lake Extra Board fer -November

19, 1994

which shows Mr. Spears

status as being I.P. or Invesrizarion?ending with a note to the side that he could

mark up on

11/18

0001

a.m. It,,, as ironic the computer shows he can mark up.

and at this time engineer Spe=rs has ..^.o realization as to what discipline he

has

been

assessed in the form of a norfica lien from the railroad as required by agreement.

Carrier's Notice of Discipline dated November 18, 1994 and received by Claimant almost a week later clearly was issued well beyond the ten-day limitation provided for in BLE Rule 136(h), reading in pertinent part: "(h) Decisio;,. Decision will be rendered within ten days j% om the date the hearing is concluded... " (emphasis added). The Organization caned its burden of persuasion that in this case, Carrier failed to issue its decision as provided by BLE Rule 136(h) suera. Moreover, the attempt to use the Notice of Discipline dated November 1S. 1991 as a means of "clarflIng" the previously side-track_°d -- o^T 3 ce·airvv did not adhere to the spirit and Lntent of

el's

NO. 4q5-0 AWARD N0. 93 NMB CASE NO. 93 UNION CASE NO. 02095C

COMPANY CASE NO. 9501107

Upgrade Discipline Policy or BLE Rule 136th). Carrier management is responsible for procedural propriety in its administration of the L-PGR_a.DE Policy. Serious mishandling by local management caused fatal procedural Raffs which r e ;uiire voiding of the disciplinary action taken against Engineer Spears in this case.

A ·,,V, a. RD

1) Claim sustained.

2) Carrier shall implement

t_ds

?:A

a:d « i[hin thirty (30) days of its execution by a majority of the Board.

Dana Edw-and Eischen, Chairman

Dated at Spencer. New York on

May S. 1999

Umon Membel/ Company Member