PUBLIC LAW BOARD NO. 6030

Case No. 1 Award No. 1

PARTIES Brotherhood of Locomotive Engineers
to and
DISPUTE: Eastern Idaho Railroad Company

STATEMENT OF CLAIM

The Organization requests the expungement of all discipline and reinstatment of Conductor P. D. Bates with pay for all time lost and seniority and vacation rights restored unimpaired.

FINDINGS: This case must be viewed within the context of the Claimant'-s employment status on November 9, 1995 when he was discharged from the -Carrier's service and his rights, if any, conveyed by the Agreement between Eastern Idaho Railroad, Inc. and the Brotherhood of Locomotive Engineers that became effective on April 3, 1996. Accordingly, a review of the significant events and facts as developed on the Property are key to resolution of the claim.
The Claimant was employed by the Carrier on May 8, 1995. He was discharged from service on November 9, 1995. Following his dismissal, the on-the-property record shows:

November 14, 1995. A hand written letter from the Claimant to a Carrier in which he requested a fair and impartial hearinq and that he be given a reason for his termination.

November 27, 1995. The Trainmaster, Mr. Jack Lisle

("Lisle") , responded to the Claimant. Lisle stated that the Claimant on November 9, 1995 had been sent to relieve another crew. Lisle further stated that the Claimant :vas told that five handbrakes had been applied to the train. However, according to Lisle, the Claimant moved the train about eight miles and failed to release the handbrakes. This caused considerable damage to the wheels of five cars. Lisle further claims in the letter that "these facts" were discussed with the Claimant at the Claimant's request on November 9, that three other Carrier employees were present during that discussion and that his "past reprimand record was discussed." This record shows discipline was administered on October 4 and 18, 1995.

PLB No. 6030 C-1JA-1
Page 2

February 27, 1997. On this-date, -the_ Organization's former General Chairman filed a detailed aon_eal on behalf of the Claimant. The appeal focuses on the following major points:

1. The Claimant was dismissed without an investigation.

2. .The Claimant had not been provided sufficient training by the Carrier.

3. The two prior incidents, that led to reprimand or a warning notice to the Claimant had mitigating elements that were not given proper weight by the Carrier.

4. The Carrier erred in not holding an investigation concerning the incident of November 9, 1995. Had it done so, the facts would show that the Claimant was not at fault to the degree suggested by the Carrier.

May 1, 1997. Counsel for the Carrierdenied the Organization's appeal of February 27, 1997 mainly for the following reasons:

1. The Claimant was not represented by the Organization at the time he was discharged and, indeed, was an "at will" employee who could be dismissed without cause by the carrier.

2. Without prejudice to its basic position, the Carrier provided its substantive reasons in detail that the Claimant's failure to properly perform his duties was a major violation of the Carrier's Operating Rules. Therefore, a proper basis to separate the Claimant had been established.

The Board finds that the claim must be denied. The Claimant was an "at will" employee. The Carrier's Personnel Policy Manual, applicable at the time of the Claimant's employment in pertinent part provided:

The purpose of this Manual is to outline the current policies of Eastern Idaho Railroad. This Manual is not an employment contract, and Eastern Idaho Railroad reserves the absolute right to change or modify any or all of its policies without notice to any employee. Notwithstanding anything to the contrary in this Manual, Eastern Idaho Railroad shall have the right to terminate any employee at the will 'of Eastern Idaho Railroad, with cr without cause.

PLB No. 6030 C-1/A-1 ~~ AJ1 I Page 3

The language noted above is clear and unambiguous. Moreover, because of the Claimant's "at will" status, the Carrier's actions here is also supported by a holding of the Supreme Court of the State-of

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Idaho, in Michell v. Zilog, Inc., 129 Idaho 709, 874P.2d 520 (1994) when it held:

It is settled law in Idaho that, unless an employee is hired pursuant to a contract which specifies the duration of the employment or limits the reasons for which an employee may be discharged, the employment is at the will of either party. Either party may terminate the relationship at any time for any reason without incurring liability.

Therefore, the only remaining question before the Board is what rights the Claimant has pursuant to the Parties' April 3, 1996 Agreement. This Agreement was not retroactive. The former General Chairman, during the on-the-property handling of the case, provided no evidence that the Agreement provided retroactive rights to the Claimant at the - time when he was dismissed.
For all of the foregoing, the claim is denied without addressing - the merits.

AWARD

The claim is denied.

_ / ,L l?lSSeg.-

Lycke~ uessig
Carrier Member Neutral Member Organization Member
Dated: APRIL Cc, 1998 - - _