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BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES )
and )
                                            Award No. 102

UNION PACIFIC RAILROAD COMPANY )

Martin H. Malin, Chairman & Neutral Member

D. D. Bartholomay, Employee Member

D. K. Peitzmeier, Carrier Member


                    Hearing Date: August 8, 2006


STATEMENT OF CLAIM:
      1. The Agreement was violated the when the Carrier refused to allow Mr. T. H.

          Hecker to exercise his seniority rights after he had submitted an advance written

          notice of his desire to do so on January 9, 2005 (System File RJ-0521

          201/1420252).


      3. As a consequence of the violation referred to in Part (1) above, Claimant T. M.

          Hecker shall now be reimbursed for all lost wages lost in this connection. The

          period of time involved in this claim commenced January 31, 2005, and

          subsequent days thereto until such time as Claimant Hecker is allowed to exercise

          his seniority.


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.

 Claimant was employed as a Manager Track Maintenance, a position not covered by the Agreement. On January 7, 2005, Carrier dismissed Claimant from service. By letter dated January 9, 2005, Claimant advised Carrier that he had vacated an exempt position and wished to exercise his seniority as an Agreement-covered employee pursuant to Agreement Rule 22(c)(2). By letter dated January 15, 2005, Carrier notified Claimant to appear for an investigation on February 1, 2005. The notice alleged that Claimant exhibited unethical and possibly dishonest behavior in using his position and his Visa Procurement Card for personal gain, by receiving
                                              iPL13 6302.

                                              Award IOa


gratuities which resulted in Carrier being overcharged for railroad material that in some cases Carrier did not receive during a period ending September 30, 2004. It further alleged that Claimant was dishonest when interviewed by Railroad Police and Corporate Audit on October 22, 2004. Claimant was advised that he was withheld from service pending investigation. On February 4, 2005, the Organization filed a claim alleging that Carrier had violated the Agreement by not allowing Claimant to exercise his seniority rights after he vacated a non-Agreement position. The hearing was postponed to and held on February 15, 2005. On February 24, 2004, Claimant was notified that he had been found guilty of the charges and dismissed from service. On April 20, 2005, the Organization filed a claim challenging Claimant's dismissal. This second claim is before this Board as Case No. 104.

 The instant claim alleged that when Claimant was dismissed from his non-Agreement position, he had a right to exercise his seniority pursuant to Rule 22(c)(2). The Organization relies on Third Division Award 35868, which held that an employee dismissed from a nonAgreement position who also had seniority under the Agreement was entitled under Rule 22(c)(2) to exercise seniority to an Agreement position. However, in Award 35868, Carrier at no time moved to dismiss the claimant following the claimant's notice of his intent to exercise seniority to an Agreement position. Third Division Award 35868 simply does not control the instant case.

 In reaction to Third Division Award 35868, Carrier, upon receiving notices from employees dismissed from non-Agreement positions of their intent to exercise seniority to Agreement positions, began notifying those employees to report for formal investigations and withholding them from service pending investigation. That is what Carrier did in the instant case, as well as in two prior cases decided by this Board. In Case No. 90, Award No. 87 and Case No. 91, Award No. 88, we held that "it was proper for Carrier to notice Claimant for an investigation following receipt of his letter advising of his desire to exercise seniority to an Agreement-covered position, [and] that the investigation could be based on misconduct during performance of the duties of an exempt position . . ." We reaffirm that holding. Assuming that Claimant had a right to exercise seniority under Rule 22(c)(2),' Carrier certainly had a right to notice him for a hearing concerning misconduct which, although committed while performing in a non-Agreement position, would subject him to discipline or dismissal under the Agreement, and to withhold him from service pending the hearing.

 During handling on the property, the Organization further asserted that "Carrier is admitting that a `hearing' was held just to appease previous wards (sic) with no intention of conducting what would be considered a fair and impartial hearing. In other words, the Carrier admittedly went through the motions just to address what might later be procedural concerns."

 'We note that there tire conflicting awards over whether an employee dismissed from a non-Agreement position has any subsequent rights to employment under the Agreement. As in Award Nos. 87 and 88, we see no need to resolve that conflict in authority, but instead assume that the dismissed employees still has rights under Rule 22.

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                                                -PLB 1~3o a

                                                ALoafd joa


The Organization's contention was rejected in Public Law Board 6402, Case No. 60, Award No. 39 and Case No. 61, Award No. 40. We note that PLB 6402 consisted of the Neutral Chair and Employee Member of this Board and the predecessor to the Carrier Member of this Board. The Board held:

      The Organization further argues that Carrier denied Claimant a fair and impartial hearing by pre-judging his guilt We fail to see the logic of the Organization's argument. Claimant was dismissed from his position as an MTM. He was not entitled to a hearing prior to his dismissal. His entitlement to a hearing arose, if at all, when he advised Carrier of his desire to exercise his Agreement seniority. At that time, Carrier scheduled the hearing. We fail to see how Carrier could have acted differently. Indeed, we note that in [NRAB Second Division] Award 13171, the Board ordered that the claimant notify Carrier within fifteen days if he wished to exercise S.M.W. seniority and ordered Carrier upon receiving such notice to schedule a timely investigation. There is no suggestion in Award 13171 that holding such an investigation after having dismissed Claimant once for the offense that would for the basis for the investigation would amount to pre-judgment.


We adopt that holding from PLB 6402 and reject the Organization's argument.

 During handling on the property, the Organization further maintained that the notice of investigation and the hearing could not have served to terminate Claimant's seniority because they occurred more than thirty days following the events that served as the basis for Claimant's dismissal. We rejected a similar contention in Awards Nos. 87 and 88, where we held that the thirty day period runs from the date that the employee gives notice of his intent to return to an Agreement position and exercise seniority. We reaffirm that holding. The hearing was scheduled for February 1, 2005, i.e., within thirty days of January 9, the date Claimant gave notice of his intent to return to an Agreement position. It was postponed, by mutual agreement of Carrier and the Organization, to February 10, 2005. There was no violation of the time limits contained in Rule 48 of the Agreement.

                          AWARD


      Claim denied.


                      Martin H. Malin, Chairman


AkJ

~ D. K. Peitz ier D. B tholomay,
 Carrier M Emplo ember

                Dated at Chicago, Illinois, December18, 2006


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