Martin H. Malin, Chairman & Neutral Member
D. D. Bartholomay, Employee Member
D. A. Ring, Carrier Member
Hearing 2001
discipline (withheld from service and subsequent 5 dismissal) imposed upon R. violation of Union Pacific Rule 1.6 while
as l in connection with reporting an incident regarding Company Vehicle 191560334 near was
\Vithout and sufficient cause, on the basis of unproven charges and in violation of the Agreement (System File W-9948-162/1209029).
" As a consequence of the violation referred to in Part (1) above, Mr. D.R. Paxton shall no\\. have the discipline removed from his personal record, be immediately returned to service and appropriately compensated for the full time he has been unjustly withheld from service beginning May 22, 1999 and continuing.
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 May 1999. Carrier notified Claimant to appear for an investigation on June 10, 1999, concerning his alleged dishonesty in reporting an incident involving a company vehicle on
May 16, 1999. near Edgar, Nebraska. investigation. The hearing was postponed to
was withheld from service pending the held on June 1999. On July 20, 1999,
to comply with Rule 48(e) because it failed
was oot
for the discipline. further that it proved the charge by substantial evidence and that the penalty was not arbitrary. capricious or excessive, considering
UC>U'-"C1-" of
1s claim. Rule 48(e) requires that the
decision twenty days conclusion of the hearing. The panies agree that Carrier violated this rule n11enty-one days following conclusion of the hearing. They disagree over consequences of the violation. with the Organization contending Carrier's failure to act in a timely manner invalidated the discipline and Carrier contending that. because the Agreement does not specify the consequences of a late decision, the discipline should only be overturned if the Organization can establish prejudice resulting from the delay. Both parties cite prior their positions.
11,
Two the awards cited No. 11, the agreement
are not on point. Public Law Board 1900, Case No.
In case an employe be taken out of for alleged cause he will be given a hearing. and shall be permitted to an O.R.C. or B of RT Committeeman present at examination of all a decision shall rendered in h1s
out
The Board in that case reasoned that the parties did not intend to cut off Carrier's ability to discipline an employee five days after the employee was withheld from service, as long as Carrier acted promptly in holding the hearing and rendering the decision, and no prejudice to the employee was shown. The Board reasoned:
some investigations take more than five days. This is not to mention the take a fev,: days to interview witnesses, get the proceedings together.
notify the parties and witnesses to attend; get the Claimants to arrange representation. There is the possibility of sickness or injury to necessary parties; the time to ,vrite the transcript. These items would be obvious to the makers of the rule. Absence of a provision in the rule specifying a penalty that would be imposed on Carrier on midnight of day five impels the Board to the conclusion that total loss of jusridiction to discipline was not the intent. This was not just an oversight.
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Rule 48(e) is different from the rule before Public Law Board 1900. Rule 48(e) does not set a deadline that will often prove to be impossible to meet. It requires that the discipline be
specified time period simply
that the
It was decision was dated and postage metered nine days the hearing, but the letter was machine canceled by the Postal Service eleven days after the hearing and received by the twelve days after the
It appeared that the Postal Service had not picked up outgoing mail on the day the decision was written and metered or on the following day. Board held that the decision was rendered within the agreement's time fran1e and that Carrier could not be heid responsible for the Postal to perform its job properly.
In the instant case, there is no dispute that Carrier did not issue the decision or dispatch it for delivery to Claimant until tv,enty-one days following the hearing. Neither the Postal Service nor any other was responsible for the delay. Public Law Board 4266, Award No. 30, simply is not applicable to the situation case.
The third award cited by Carrier, Third Division Award No. 33955, however, is not distinguishable. The agreement in that case provided, "Decision will be rendered and the employee notified in writing, sent to last available address, v,ithin ten days of completion of the hearing ... " The award indicates that the decision was not rendered until sixteen days after completion of the hearing. The Board held that, in the absence of express language providing the
an untimely discipline would balance the equities in to disturb discipline. noted justified the
presence of issues. The Board further observed that there was no prejudice to the Claimant the charge, testing positive for a controlled substance following accident, was serious. The Board denied the claim.
On the other hand. the Organization has cited several awards. including Third Division Awards Nos. 10035, 24623, and 32759. Each of these awards held that Carrier's failure to render a timely decision on discipline had the effect of exonerating the Claimant. In each of these cases. language did not expressly provide that failure to render a timely decision was to the discipline.
We believe that the awards cited by the Organization provide the better view. With all due respect to the referee in Third Division Award No. 33955, the a,vard in that case has the effect of ignoring clear plain Agreement language. It also ignores the well-established practice in the industry of strictly enforcing Agreement timelines. For example. when a claim is filed late or is not progressed in a timely manner it is generally dismissed. Agreements such as Rule 48(e) are designed to ensure that decisions are rendered promptly so that the charged employee is not
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left in limbo wondering what his fate will be. This is particularly important where the charged employee been withheld from Indeed, an employee such as the Claimant before
No.
Moreover, Claimant's
on May 1 l
without permission when he received a phone call advising him of a family emergency. Claimant drove to his home, dealt with the emergency and then drove back.
en route back to his job location, Claimant ran the vehicle off the road and into a ditch. Because it was late at night, Claimant left the vehicle in the intending to return the next morning with assistance to pull vehicle out. However, the local sheriff impounded the vehicle and had it towed to a area before Claimant could retrieve it.
The next morning Claimant reported the incident to Carrier. Claimant and a Carrier supervisor retrieved the vehicle and had a flat tire, the only damage to the vehicle, repaired.
Carrier offered an UPGRADE Level 2 discipline if Claimant would waive a hearing to a charge company property. Claimant accepted the offer and signed the waiver. However,
waiver and 2 discipline. later, it noticed investigation reporting the incident. Specifically,
Carrier contended that to report his consumption of several beers prior to the accident. Carrier withheld Claimant from service, conducted the hearing and failed to render the decision a timely manner.
Claimanr s conduct was not exemplary and should not be viewed as acceptable by
armeea to
, ,n·,yn,:.nv ,...,.r,-na?"h, and accepted a Level 2 discipline. Carrier then reneged
<>nT'"'"''"'""' T withheld Claimant from service and noticed him for investigation on a charge of dishonesty. the hearing, Claimant admitted taking the vehicle without proper authorization but denied that he was dishonest when he reported the accident. Carrier issued a decision dismissing Claimant that was outside the Agreement's time limits and offered absolutely no explanation for the delay. Were we to balance the equities, the balance would clearly be weighted in of Claimant.
Claim sustained.
4
A
an
thirty days from the date two members affix their
Martin H. Malin, Chairman
Dated at August 24, 200 l.
6302
)
)
Martin H. Malin. Chairman Neutral Member
D. D. Bartholomay Empioyee Member
D. A. Ring, Carrier Member
Interpretation No. 1
This Board sustained the Organization·s claim that Claimant's dismissal violated the Agreement. Carrier requested that Claimant provide records of any outside earnings that he had during the period he was dismissed. The Organization contended that Carrier may not offset outside earnings against lost wages. The parties have returned to the Board for an interpretation of the award.
This matter presents two issues. First, the Organization contends that Carrier may not of it failed during handling
of the initial claim on the property. Carrier responds that it may properly raise the issue in a request for interpretation of the award. Second. the parties disagree over whether the Agreement allows for such an offset.
A review of the cited awards shows that there is no consensus among referees concerning whether a Carrier must raise the outside earnings issue during handling of the initial claim in order to preserve it for consideration in the event of a sustaining award. This is certainly an issue over which reasonable minds can differ and over which reasonable referees do differ. We need not join the abstract debate, however, to resolve the dispute presented.
The claim that we sustained provided:
1. The discipline (withheld from service and subsequent Level 5 dismissal) imposed upon Mr. D.R. Paxton for alleged violation of Union Pacific Rule 1.6 while working as track patrol foreman on May 16, 1999, in connection with reporting an incident regarding Company Vehicle No. 191560334 near Edgar, Nebraska, was without just and sufficient cause, on the basis of unproven charges and in
violation of the Agreement (System File W-9948-162/1209029).
be "appropriately compensated''
under Carrier's position, of course, is that "appropriate" compensation includes an earnings. was no reason for Carrier to the issue offset for
time the claim was handled on the property and adjudicated before Board. Certainly. Carrier could reasonably regard the claim as seeking compensation in accordance with the Agreement.
The we sustained is in marked contrast, for example, \Vith the claim sustained in Third Division Award No. 21372. one of the awards on which the Organization relies. The claim in that case demanded:
Trackmen J. R. Johnson and C. Lawson shall each be allowed eight (8) hours' pay each regular workday and each holiday beginning May 20, 1974 and continuing until they are reinstated to service with seniority, and vacation rights unimpaired.
In Interpretation No. 1 to Award 21372, the board held that the carrier was barred from raising post-award an offset for the claimants' outside earnings because the carrier failed to raise it during handling of the initial claim on the property. Regardless of whether we would follow Interpretation No. 1 to Award No. 21 and similar authority in the abstract we note that the claim before the board in that case was very specific as to how the remedy was to be calculated,
(8) regular workday and each holiday 1974 continuing until they are reinstated to service... " The claim in the instant case merely asked that Claimant be "appropriately compensated." Clearly, what is meant by "appropriately compensated" is a matter that Carrier may raise in a post-award request for interpretation.
In offsetting outside earnings, Carrier relies on Rule 48(h) \i,:hich provides:
If the charge(s) against the employee is not sustained the record of the employee will be cleared and if suspended or dismissed, the employee will be returned to former position and compensated for net wage loss, if any, which may have been incurred by the employee.
Carrier relies on Interpretation No. 1 to Third Division Award No. 31140 which held that Rule 48(h)'s provision for compensation for "net wage loss" authorizes an offset for outside earnings. The Organization agrees that this was the holding of Interpretation No. 1 to Third Division A\vard No. 31140, but urges this Board not to follow it. The Organization argues:
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A review oflnterpretation No. I to NRAB Third Division Award 31140 reveals a
"split the baby" decision where, once the Catter complained (written dissent), the neutral
maintains that the position
the request for interpretation, the referee must have been trying to curry favor with Carrier by "splitting the baby." Under this view, a referee could never agree with a carrier's position a request for following a sustaining award from a carrier board member dissented without having the referee's decision characterized as splitting the baby and not standing as Organization's position is untenable.
We find Interpretation No. 1 to Third Division Award No. 31140 to be a reasonable interpretation of Rule 48(h). We further find it controlling in the instant case and, accordingly. we will follow it.
Accordingly. we find that the issue of offset for outside earnings is properly before us.
We further find that Carrier may offset outside earnings.
D. A. Ring. ( \
Carrier Member \_)
Dated at Chicago, Illinois, March 20, 2002.
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) Case No. 24
and
Martin H. Malin, Chainnan & Neutral Member
D. D. Bartholomay. Employee Member
D. A. Ring, Carrier Member Interpretation No. 2
)
) Award No. 23
)
This Board sustained the Organization's claim that Claimant's dismissal violated the Agreement.
In Interpretation No. I, we held that Carrier may offset outside earnings against back pay. The parties have returned to the Board for a second interpretation. Specifically, they disagree over whether back pay includes overtime that the Claimant might have worked had he not been dismissed.
The Organization contends that Carrier may not raise the issue of overtime at this stage of the proci.:edings because it laikJ to t"ai e d11;,; i::.::.ue Juring handling of the initial claim on the property. I he Organization made the same argument concerning offsets for outside earnings. We rejected that argument in Interpretation No. I and see no reason to depart from our holding in Interpretation No. I that Carrier may raise issues concerning calculation of the amount of compensation due by seeking an interpretation to the award.
Carrier relies on Interpretation No. I to Third Division Award No. 31140 which held that compensation was to be computed based on straight time hours that would have been worked had Claimant not been dismissed. As it did with respect to offset for outside earnings in Interpretation No. I, the Organization urges us not to follow Award No. 31140. In Interpretation No. I we held that on property Award No. 31140 was a reasonable interpretation of Agreement Rule 48(h) and followed it. We see to reason to depart from our holding or reasoning in Interpretation No. I. Accordingly, we will follow Interpretation No. I to Award No. 31 t 40 and hold that the award of compensation for time held
Martin H. Malin, Chairman
D. A. Ring, Carrier Member
Dated at Chicago, Illinois, June 28, 2002.