BROTHERHOOD OF LOCOMOTIVE ENGINEERS )
VS.
) Parties to Dispute
)
UNION PACIFIC RAILROAD COMPANY )
STAmZIrTT QF CLAIM:
Claim of Engineer J. L. Ferris, Eastern Seniority
District No. 1 (CNW) for removal of Level III
discipline from Claimant's service record and
for payment of all time or miles lost including
the time attending the investigation and the
resulting five (5) day
suspension. Claimant
was required to attend investigation on May 15,
1996 on the following charge:
"Your responsibility for your
alleged violation of Rule 81.4
of the General Code of Operating
Rules, which resulted in injury
to yourself on March 4, 1996,
at approximately 1C:35 a.m.,
while on duty as engineer
on
train NPCHBR-02
on
duty March 3,
1996 at 2350 hours."
Subsequent to the investigation, Claimant received
a Level III, five (5) day suspension effective
May 23, 1996 through May 27, 1996.
FINDINGS
Upon the whole record and all the evidence, the Board
finds that the parties herein are Carrier and Employee within
Lg
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, 5383
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1)
No
(otib
the meaning of the Railway Labor Act, as amended, and that the
Board is duly constituted by agreement and has jurisdiction
of the parties and of the subject muter.
While getting off an engine, Claimant Engineer slipped
on the ladder and suffered a leg injury subsequently
diagnosed as a broken tibia bone. He was charged with
violation of Operating Rule 81.4 which resulted in the injury
described. Following a disciplinary hearing, he was assessed
five (5) days suspension under Level 3 of the Carrier's
"Upgrade" Policy.
The record establishes that a Carrier officer investigated
the incident and testified at the hearing but did not witness
the accident when it occurred.
The weakness in the case against Claimant stems from the
fact that two (2) employees were on the scene and observed
the incident but were not called to testify at the hearing.
In First Division Award 24295 (Muessig)(C&NW) the Board held
in part as follows:
"The notion of a fair hearing requires
that the Carrier summon to the hearing
all witnesses which reason and logic
_2_
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. 533
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dictate may have some relevant and
material testimony or evidence to
present. The primary purpose of a
hearing for which the Carrier has
the burden of conducting fairly,
is to develop the facts aid
circumstances with respect to the
issues that are raised by the
charge, including those facts which
favor as well as those which are
adverse to the Claimant."
In First Division Award 19910 (Daugherty)(K.C. Terminal)
the Board stated in part:
"As to the calling of witnesses, a
carrier's role is that of judge; a
carrier is, by rule and by the general
principle of fairness, obligated to
obtain all the essential facts related
to the charge. This means that a
carrier must call all witnesses who
possibly might be able to throw
factual light on the occurrences
involved. It means that in respect
to the calling of witnesses the
judicial function must dominate the
behavior of a carrier. It is not
enough for a carrier merely to rely
on another provision of a rule,
which, as here, maintains the right
of the accused to call his earn
witnesses to testify in his behalf.°
What was said in the Awards cited above, and others, is
applicable here. The discipline must be set aside.
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Claim is sustained.
ORDER
The Carrier is ordered to make this Award effective
within thirty (30) days from the date shown below.
k,,-,
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Employee Member CarrA6r Memb
Chairman and utral Member
Dated: .~ r~6-
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