PUBLIC LAW BOARD NO. 6402
AWARD NO. 144, (Case No. 165)
BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES
DIVISION - HIT RAIL CONFERENCE
vs
UNION PACIFIC RAILROAD COMPANY (Former Missouri Pacific
Railroad Company)
William R. Miller, Chairman & Neutral Member
T. W. Kreke, Employee Member
B. W. Hanquist, Carrier Member
Hearing Date: August 17, 2010
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood that:
1. The Carrier's decision to impose discipline in the form of disqualification of
Mr. D. T. Mauldin from a truck operator position on System Rail Gang 9479,
for allegedly failing to maintain proper maintenance and pre-trip inspections
as required for truck drivers, beginning on July 3, 2008 and continuing, is unjust,
unwarranted and in direct violation of the Agreement (System File MW-08-102!
1510077).
2. As a consequence of the violation outlined in Part 1 above, we request that the
disqualification as a truck operator position on System Rail Gang 9479
be immediately removed from Claimant's record and the Carrier shall return
Claimant to his former position of system truck driver operator. Additionally,
Claimant Mauldin shall be paid two hundred and thirty-two (232) hours as
well as any overtime hours in connection with said position, for the loss of
wages he has incurred because of his improper disqualification as truck operator
on System Rail Gang 9479, in accordance with Rule 48(h) of our Agreement."
FINDINGS:
Public Law Board No. 6402, 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.
P.L.B. No. 64022
Award No. 144, Case No. 165
Page 2
On July 3, 2008, Carrier notified Claimant that he had been disqualified as a Truck
Operator on System Rail Gang 9479. This is another case in a continuing dispute between the
parties over whether or not a disqualification of an employee without benefit of a fair and
impartial Hearing is in accordance with the Agreement. The issue is not new to Public Law
Board No. 6402 and in Award No. 6 it considered the parties arguments and their respective
cited Awards many of which are again raised in this case, and it determined the following:
"We agree with PLB 526. When Carrier disqualifies an employee
from a position based on a determination that the employee is incapable of
performing in the position, the disqualification is not disciplinary in nature
and no investigation is required. When Carrier disqualifies an employee
from a position based on the employee's misconduct or failure to perform
in the position despite being capable of performance, the disqualification is
disciplinary in nature and an investigation is required. Each case must be
examined on its facts to determine on which side of the line it falls."
(Underlining Board's emphasis)
Award Nos. 57, 74 and 123 of this Board have adhered to the aforementioned logic and the
Board in this instance finds no reason to deviate from its past rationale, therefore, this case will
be "...examined on its facts to determine on which side of the line it falls."
The record indicates that prior to June 8, 2008, Claimant recognized that the rear banjo
axle housing of Truck 63602 was leaking fluids, after which he contacted Supervisor Craig and
made arrangements with a mechanical shop to have the repairs made to the truck. On June 8th
the Claimant drove the truck to the mechanical shop and dropped it off for repair.
Subsequently, Claimant was absent with permission from June 9 through 13, 2008, after
which he took vacation time from June 16 through 20, 2008. During that time period employee
T. Lewis was instructed by Supervisor Craig to remove the truck on June 16th from the repair
shop, even though it had not been repaired, as it was determined that it was needed on the job.
The truck was used until June 20th when it broke down while being returned to the mechanical
repair shop in Monroe, Louisiana. In the Organization's letter of November 3, 2008, it discussed
the removal of Truck 63602 from the shop prior to being repaired and said in pertinent part the
following:
"...while it was in the shop for repairs instead of letting the repair shop
fix the problem it was taken in for in Bastrop, Texas, the Union Pacific
Railroad Company allowed a Mr. Terry Lewis and Mr. Eric Moore to
pick-up the truck and remove it from the freight liner shop and worked
the truck..."
P.L.B. No. 6402
Award No. 144, Case No. 165
Page 3
That statement was not rebutted, therefore, it is clear that Claimant arranged for Truck 63602 to
be removed from service for repair and while he was absent a Carrier Supervisor determined that
the truck was needed despite its lack of repair and during that absence the truck broke down.
Was the Claimant negligent prior to June 8th in the upkeep and care of the truck, before it was
sent to the shop? That question will never be answered because this is a case in accordance with
Award No. 6 that should of had a formal Investigation to determine whether or not there was a
"...failure to perform in the position despite being capable of performance,..." as it is clear
that Claimant understood the responsibilities of his assignment and had the requisite fitness and
ability for the position. Claimant's fitness and ability for the job is further underscored by the
fact that a review of the Employee's Record verifies that after being disqualifed from a Truck
Operator position on Gang 9479 he exercised his seniority to a Truck Operator position on Gang
462.
The Board finds and holds that the disqualification is set aside and removed from the
Claimant's record. The Claimant will be made whole for any loss of monies between those
positions he has held since July 3, 2008, and until he is returned to the Truck Operator position
on Gang 9479. If the Claimant declines to return to that position or his seniority is not superior
to the present incumbent any monies owed by the Carrier cease on the date the Award is
finalized; and if that position may have been abolished, the date of the job abolishment will end
the Carrier's liability.
AWARD
Claim partially sustained in accordance with the Findings and the Carrier is directed to
make the Award effective on or before 30 days following the date the Award was signed by the
parties.
William R. Miller, Chairman
4
4) -
B. W. Hanquist, Carrier Member
Award Date:
en~-q,-20~
' f. W.~Kreke, mploye Member