BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES )
and }
 } Award No. 6
 UNION PACIFIC RAILROAD COMPANY )

Martin H. Malin, Chairman & Neutral Member

D. D Bartholomay, Employee Member

D. A. Ring, Carrier Member




STATEMENT OF CLAIM:

      1. The discipline [five (5) day suspension and a Level 3 assessment] imposed upon

          Machine Operator D. L. Bowen for his alleged violation of Union Pacific Rules

          42.1, 42. I .4, 42.8, 41.2 and 42.2.2, in connection with an accident that occurred

          on December 18, 1996, was arbitrary, capricious, on the basis of unproven charges

          and in violation of the Agreement (System File D-288l1092144D).


      2 As a consequence of the violation referred to in Part (1) above, ` the discipline

          issued by Manager Track Maintenance D. J. Kula's letters dated January 17 and

          30, 199'7, that all mention related to the December 18, 1996, incident be expunged

          from Claimant Bowen's personal record, and that he be paid wages lost for the five

          (5) day suspension from service from February 3, 1997 through and including

          February 7, 1997, All benefits and entitlement are claimed as if he had worked.'


FINDINGS:

 Public Law Board No. 6302, upon the whole record and all the evidence, finds and holds that Employee and Carrier are employee and carrier within the meaning of the Railway Labor Act, as amended; and, that the Board has jurisdiction over the dispute herein; and, that the parties to the dispute were given due notice of the hearing thereon and did participate therein.

 On December 18, 1996, Claimant was involved in a collision between the machine that he was operating and another machine. On December 20, 1996, Claimant met with the manager

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track maintenance (MTM). At that time, the MTM gave Claimant a Form 2, Waiver/Hearing Offer. The form is divided into five sections. Section One, as completed by the MTM, states:

      Based an the facts brought forth in our discussion on 12-20-96

      you are allegedly in violation of Rule{s} 42,1 42.1.4 42.8 41.2 42.2.2

      found in the following Union Pacific Railroad Publications:

      f "heck the appropriate box:


Union Pacific Rules Timetable Other: {specify}

 in connection with: (degrincidents Runniest the BR 160 into the ATE-8901J
Section Two, as completed by the MTM, states:

    Under the UPGRADE Discipline Assessment Table, the violation listed in Section One requires a minimum discipline of LEVEL 3 .


      Section Three provides far the specifics of any disciplinary action within the preceding 36

months. The farm, as completed by the M TM is marked, "None." Section Three further
 provides, "This equates to a current discipline status of. LEVEL N/A ."

 Section Four provides far the official completing the form to specify what the current
 violation and the current discipline status equate to under the UPGRADE. It further provides for
 the official completing the farm to specify whether the violation did or did not result in an incident
 requiring discipline at the next higher level and concludes, "Therefore, the required discipline for
 this violation is: LEVEL .'" The form, as completed by the MTM, shows Section Four as
 marked, "NIA."

 Section Five provides for the employee to check one of two options: to accept the discipline proposed or to dispute it, in which case a formal investigation is to be held. Rule 48(a) provides, in relevant part:

      When employes are offered discipline pursuant to Paragraph ( I ), such employes shall either accept or reject the offer within fifteen ( l 5) calendar days from the date of receipt of the letter of charges. Discipline shall be considered accepted if formal rejection is not received within fifteen (I 5) calendar days from the date of receipt of Carrier's letter.


On January 17, 2000, the MTM wrote to Claimant, informing him that no rejection of the proposed discipline had been received and imposed the proposed discipline. The Organization filed a claim which was denied throughout the handling process on the property.

 The Organization contends that, by writing N/A in Section Four, Carrier communicated that no discipline was contemplated. The Organization interprets the completed Form 2 as
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imposing a reprimand on Claimant.

 The Board cannot agree. (fin its face, Section Four applied where the employee who is the subject of the form 2, has had prior discipline as noted m Section 3. Claimant apparently had no prior discipline. Thus, the notation, "N/A," on its face, reflected that the Section did not apply to Claimant. However, Section Two plainly stated that "the violation listed in Section One rNuires a minimum discipline of LEVEL 3 .'" (Emphasis added.) We cannot see how any reasonable person reading this form would interpret it as a reprimand. Clearly and plainly, the form proposed discipline at UPGRADE Level 3.

 Claimant maintained that he subsequently received another Form 2 from the MTM, on which the material completed in Section Four had been altered and Discipline Level 3 inserted. The MTM submitted a statement denying altering the Form 2, pointing out that the number 3 inserted in Section Four was not like the number 3 that he had written in Section Two. As an appellate body, we are not in a position to resolve the conflicting statements of Claimant and the MTM. However, m the instant case, the conflict is irrelevant. The critical question is whether, on December 20, 1996, Claimant was informed that Level 3 discipline was proposed. As indicated above, the Form 2 that Claimant admitted receiving plainly informed him that the violations with which he was charged required a minimum discipline of Level 3.

 Claimant failed to reject the proposed discipline within fifteen calendar days of December 20, 1996. Therefore, under Rule 48(a) of the Agreement, Claimant was deemed to have accepted it. Carrier did not violate the Agreement when it imposed the five day suspension.

                          AWARD


      Claim denied.


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                    _ Main H. Malin, Chairman


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D. A. Ring, D. . artholomay,
 Carrier Member Emplo a Member
 Dated at Chicago, Illinois, , 2000.