NATIONAL MEDIATION BOARD
PUBLIC LAW BOARD NO. 6198
JOHN C. FLETCHER, CHAIRMAN & NEUTRAL MEMBER
T. M. STONE, CARRIER MEMBER
DON NI HAHS, ORGANIZATION MEMBER
The Chairman and Neutral :Member, after review of the entire record, has determined that the issues before this Board are:
Public Law Board No. 6195, upon the whole record and all of the evidence, finds and holds that the Employee(s) and the Carrier are employee and carrier within the meaning of the Railway Labor .pct, as amended; and, that the Board has jurisdiction over the dispute(s) herein.
Before this Board, the parties present Engineer H. D. Adcock's claim that he was unjustly assessed discipline of thirty (30) days actual suspension in connection with the derailment of his yard assignment on January 25, 1999. According to the record, Claimant's train at the time of the incident, designated as Yard Job YHU6925, consisted of two locomotives (coupled back-to-back) and two cars (coupled to the nose end of the trailing unit). Claimant, operating YHU6925 from the rear locomotive and facing away from the direction of movement, proceeded past a point on the 500 track at Hutchinson protected by Maintenance of Way red flags (and evidently over a flag itself), derailing the lead locomotive at a partially dismantled switch. The Board notes that ground personnel were not riding the point to protect this movement as required by Air Brake and Train Handling Rule 31.2.3, nor was Claimant operating from the "lead controlling unit" as is stipulated in that same rule.
A formal investigation into the matter was conducted on February 19, 1999 in South Hutchinson, Kansas, the proceedings of which were transcribed by a certified Court Reporter. Claimant was subsequently found responsible for violating Rule 6.28 of the General Code of Operating Rules and Rule 31.2.3 of the Air Brake and Train Handling Rules cited above, and by letter dated February 26, 1999, was suspended from service for a period of thirty days. In due course, Organization General Chairman D. E. Thompson, in compliance with applicable Schedule Article 71.5, appealed Carrier's decision to Superintendent Dan Shudak, asserting the following, inter cilia, in his April 8, 1999 letter:
At this juncture. the Board takes special note of the following stipulation in applicable Article 71.10:
In closing, General Chairman Thompson's April 8, 1999 appeal also contained the following pivotal request in accordance with Schedule Article 71.5:
With respect to Carrier's obligation to conference appeals at the first level, Article 71.5 of the controlling Agreement states:
The record indicates that by letter dated April 23, 1999 (BLE Exhibit-4), Superintendent Shudak denied the April 8, 1999 appeal, even though the conference requested by General Chairman Thompson under Article 71.5 never took place. (In fact, the Organization states that it attempted to contact Superintendent Shudak by telephone once before processing the April 8, 1999 appeal and once afterward, both with specific intent to discuss the investigation and discipline. Neither call, according to the Organization's assertions, was returned. See BLE Exhibit-5 at Pg. 1.) The Board notes that Shudak's written denial of April 23. 1999 did address the alleged transcript time limit issue, asserting that "...ull records indicate the notice oJ'discipline, transcript and exhibits icere mailed at the .sumo tune to the emplovec. Local Chuirrnun crud General Chairman. The ernplwce copy ~cas mailed certr%ied and received March 1, 1999. In the jirture all
In his second level appeal to Labor Relations dated May 3, 1999 (BLE Exhibit 5), (subsequent to Superintendent Shudak's April 23, 1999 denial), General Chairman Thompson steadfastly maintained before Carrier that as of that date, nearly three months after the investigation, he still had not received a copy of the hearing transcript as required by Article 71.10. In addition, Thompson's letter of that date argued for the first time during the handling of the instant case on the property, that Carrier also erred fatally under Article 71.5 when it denied his April 8, 1999 first level appeal of Claimant's discipline before a conference on the matter had been conducted. The Board notes that Labor Relations Officer Nash's response of May 29, 1999 addressed neither of these procedural concerns, but confined itself exclusively to the merits elements of the dispute.
After a thorough review of the entire record, we, however unfortunately for Carrier, find it unnecessary based on the above, to even visit the merits of this case. We have already demonstrated in Award 2 of this Board our lack of hesitation to hold both parties to the letter as well as the spirit of the clear and unambiguous requirements of their argument.. Therefore, with respect to Carrier's apparent failure to provide the Local anti General Chairmen with complete copies of the investigation transcript within the time limits set by Article 71.10, we find, as we did in Award 2, that:
While for all intents and purposes the outcome of instant claim does turn on the above issue alone, we are compelled to comment upon Carrier's second fatal error in its handlin- of this dispute on the property. The Organization's objection to the denial of Claimant's appeal at the first level without redress of a conference (in violation of Article 71.5), is a powerful one. In support. it cites a Carrier directive, dated April 7, 1997 regarding this very question. and interestingly, Superintendent Shudak was a designated recipient (See BLE Exhibit l 1). Ms. Kelly Sheridan, Manager of Labor Relations, issued the foliowing instructions to Mr. Shudak et crl regarding SSWBLE discipline provisions, copies of which were furnished the Organization at the time of their writing:
Carrier argues on this point that because Superintendent Shudak's denial letter indicated a willingness on his part to conference on the matter of Claimant's discipline, his obligation under Article 71.E was satisfied. This Board notes, however. that Referee Arthur Van Wart expressed a different opinion in Award 24 of PLB 5345 (BLE Exhibit 13) on this property, with which kN-e embrace as correct. In that particular case, the first level denial was handled in eractlv the same manner as the one at issue before us, up to and including an identical imitation to hold a conference after the claim had already been denied. Mr. Van Wart held in that case. as he did in prior Awards t and 10 of the same Board that:
This Board can find no valid reason to disrupt the prior authoritative standards already in place on this property with regard to each of the valid procedural arguments raised by the Organization in this case. Therefore, we will, as Referee Van Wart has done before us, remain "virtuously consistent," and sustain the instant claim on that basis, without prejudice to its merit or lack thereof.
Carrier is hereby directed to remove the Level 4 30-days suspension and all references to the incident of January ?~, 1999 from Claimant's service record, and compensate him for any and all time lost as a direct result of that discipline.