AWARD NO. 5
CASE ;`O. 5
PUBLIC LA1\' BOAFD'\O. 6149
PARTIES 70 DISPUTE: Brotherhood of Locomotive Engineers
Union Pacific Railrozd Company
STATEMENT OF CLAIM: The Brotherhood of Locomotive Engineers, Chicago
and North Western General Committee of .4djust
ment, requests the Board to consider and authorize
the discipline case of Engineer T. R. Tucker, with
claim for payment in fill for all lost time and expunging
any notation of this incident from claimant's service
record.
FI'S'1)I?yGS:
The Board, upon consideration of the entire record and all the evidence, finds that
j the parties are Carrier and Employee within the meaning of the Railway Labor Act, as amended,
and that the Board has jurisdiction over the dispute involved herein.
On April 13, 1995, the Claimant wasinstructed by the Carrier to appear for a
formal investigation at 10:00 a.m. on Saturday, April 15, 1995, on the following charges --
Your responsibility for your violation of Rule 1.5 of
the General Code of Operating Rules, Third Edition,
effective April 10, 1994, and your violation of Federal Regulation CFR 49, Part 219.101 while employed as Engineer on job \',l1'C10, on duty 10:00
a.m., April 13, 1995 at DeKzlb.
Following a postponement requested by the Organization, the heating was held
on May 4, I 995.
On -May 15, 1995, Claimant was advised in writing by Carrier's General Manager
that he was being dismissed effective May I
------
r
Ori tune 5; 1995, the
Carrier'
notified~Claimant
as
follows - -_ _ : . _ ..:
. . . _ . . .; . . w. . . _ _ .. _ . . .
PLB \O 6149 - _ - AWARD '.s0
CASE NO. 5
four Locomotive Enaineers Certificate is hereby
revoked for : 0 days in accordance with FR.4
Regulation 49 CFR Pan =19 101 This 30 day
revocation expired May 15. 1905
The record establishes that Claimant was returned to service on February 7. 1996
without prejudice to his claim for time lost, but subject to the FRA requirement for follow-up
drug and alcohol testing.
The Organization has challenged Carrier's disciplining of Claimant on the basis of
perceived procedural irregularities as \;ell as the merits.
At the outset, the Organization argues that Claimant was not accorded a fair and
impartial hearing because Carrier's decision to dismiss Claimant from service was rendered before
the Officer who issued the discipline had an opportunity to review the transcript. According to
the record, the letter of dismissal was written on May 15, 1995, whereas it appears the transcription did not commence until thereafter, or, more precisely, until May 16, 1995.
First Division Award \o. 24874 (without Referee); Award Nos. 23, 25 and 26
(Eickman) and Award No. 32 (Lynch) of Public Law Board No. 5912; Award No. 57 of
Public Law Board No. 5390 (Fisher); and Award Los. 74 and 79 (Lieberman) and Award Nos.
88 and 90 (Lynch) of Public Law Board No. 4897, all of which are cited by the Organization,
support the concept on this property that a fair and impartial hearing demand that reasonable consideration of the transcript be made prior to assessment of discipline.
Since it is clear that the Officer of the Carrier who rendered the discipline did so
prior to receiving and reviewing the hearing transcript, the procedural objection raised by the
Organization on this issue has substance and lives the Board cause to set aside the disipline,
PLB \0. 6149 - _ - AWARD NO. 5
CASE .'s0 5
which is in keeping with previous awards nn this proPe;w involving the identical subject.
Havin2 so concluded, the Board need lot address the additional procedural
questions raised by the Organization. nor shall we rev ew the cast on its merits.
The claim is sustained.
ORDER: The Carrier is instructed to comply with this sward within 30 days of the date hereof
'.
14
/14
'hn
Cook,
Jr,
Chairman and Neutral Member
D. . GonzalesCarrier Menb
13.
)d
~ ~ G..._-
B. D.
MacArthur
Employee Member
Dated at Portland, Oregon this
a6
~ day of February, 1999.