Carrier LR File: 1419432-D
Parties to the Dispute:
Union Pacific Railroad Company
and
United Transportation Union
Statement of Claim:
"Claim of Conductor R. Swarthout for removal of a 5-day suspension and Level 2
discipline from his personal record with pay for all time lost, including time spent attending the
investigation, vacation benefits, and payment for all wage equivalents to which entitled, with all
insurance benefits and any monetary loss for such coverage while improperly disciplined without
regard to any outside income that may have been earned by Claimant during such period of
time."
Findings:
The carrier or carriers and the employee or employees involved in this dispute are
respectively carrier or employee within the meaning of the Railway Labor Act as approved June
21, 1934. Public Law Board 6942 has jurisdiction over the parties and the dispute involved
herein.
At the time of the incident that led to the suspension in this matter, Claimant R.
Swarthout was a Foreman in the Operating Department at the North Platte Service Unit and was
working the West Hump. Claimant has service dating from May 16, 1977.
A review of the record shows that Claimant was working the West Hump on September
20, 2004, with a three person crew that included a student. An incident occurred that required
the entire crew to be taken to the Yard Office for a urinalysis test. Claimant returned to the West
Hump office later that day. The two other crewmembers had returned earlier and had been
dismissed by Mr. D.J. Essman, a Yard Master. Claimant did not contact Mr. Essman upon his
return to the West Hump office. Claimant went home after learning that the rest of his crew had
been dismissed.
Carrier advised Claimant in a certified letter dated October 6 2004, that an investigation
would be held "...in connection with your responsibility, if any, for: While working as a
Foreman on the P27R-20 job at approximately 2100 you allegedly left the property without
warning." The investigatory hearing was held on November 10, 2004. The Carrier notified
Claimant in a letter dated November 18, 2004, that:
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...the following charges against you have been sustained: While
working as Foreman on the P27R-20 job at approximately 2048,
you allegedly failed to report to SMTO Dirk Hardy at the BCC
after completion of the urinalysis test. Therefore, you are in
violation of General Code of Operating Rules 1.13 effective April
2, 2000. This incident is a Violation 2. Based on the progressive
discipline system you are now assessed a Violation 2 discipline
which is five days off work without pay...
The Organization claims that the discipline was unwarranted because the Carrier was
unable to meet the burden of proof. The Organization argues that the Carrier failed to prove that
Claimant knowingly violated Rule 1.13 when he left the property. According to the
Organization, the evidence shows that the doors to the office were locked and that Claimant's
knocks could not have been heard. Confronted with a situation where he returned from the
urinalysis to find that his crew had been sent home, nobody was in the office, there was ample
time to question him while waiting to take the urinalysis and it was common practice to dismiss
entire crews with notification to one member, Claimant went home.
The Organization also claims that, in addition to being unable to meet the burden of
proof, the Carrier engaged in two procedural violations that are fatal to the Carrier's case. First,
the Superintendent failed to respond to the appeal of the Local Chairman within the 30 day
requirement of Rule 84(b)(1), and therefore the discipline is void. Second, the Organization
continues that the date of the offense was not included in the notice of investigation or the notice
of discipline.
The Carrier maintains that the burden of proof has been met here. The Claimant was
afforded a fair and impartial investigation in accordance with the requirements of the Agreement
between the Carrier and the Organization. The Carrier considers that Claimant is guilty as
charged and points to, among other things shown in a review of the transcript, an admission by
Claimant that he left the property without permission. The Carrier continues that there were no
procedural violations, and even if there was a procedural violation, prior awards support the
proposition that the error was harmless. Even if the Superintendent responded beyond 30 days,
this cannot void the discipline because the Agreement between the Carrier and the Organization
lacks a result if the timeframe for the Superintendent's response expires.
Rule 1.13 provides:
Reporting and ComplyinjzWith Instructions
Employees will report to and comply with instructions from supervisors who have the
proper jurisdiction. Employees will comply with instructions issued by the managers of
various departments when the instructions apply to their duties.
The Board sits as an appellate forum in discipline cases. As such, it does not weigh the
evidence
de novo. Thus,
it is not our function to substitute our judgment for the Carrier's and
decide the matter according to what we might have done had the decision been ours. Rather, our
inquiry is whether substantial evidence exists to sustain a finding of guilty. If the question is
decided in the affirmative, we are not warranted in disturbing the penalty absent a showing that
the Carrier's actions were an abuse of discretion.
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After a review of the evidence, the Board finds that there were no procedural defects
which void the discipline. Initially, the Board notes that the Carrier's letter to Claimant dated
October 1, 2004, and mailed via certified mail, contains the following opening language: "This
refers to an incident that occurred on September 20, 2004. It has been determined from the
initial review that there is sufficient evidence to warrant the disciplinary process to continue."
(Exh. 3) A Behavior Modification Form was attached to the letter. In the Behavior Modification
Form the date, time, location, milepost, train and allegation were specifically stated. Claimant
was put on notice of the charges against him with sufficient specificity that he could answer the
charges and form a defense.
It is undisputed that the Superintendent's reply to the General Chairman's appeal was not
within the thirty day requirement of Rule 84(b)(1) and the record shows that it exceeded the time
limit by approximately seventeen days. However, the rule of
NRAB Third Division, Award No.
33955 cited by the Carrier, is instructive in analyzing this procedural issue with the following
statement: "The better rule seems to be where the Rule specifically provides for the
consequences of a late decision, that Rule must be enforced according to its terms. Where the
Rule does not provide for specific consequences, all of the equities should be considered."
Unlike the "drop dead" provision found in Rule 84(b)(2) for an appeal to the General Manager
that is not answered within thirty days, there is not a similar provision in Rule 84(b)(1) and the
equities must therefore be examined. The Superintendent denied the General Chairman's appeal
approximately seventeen days beyond the thirty day date. A review of the record shows that
Claimant was not prejudiced by this delay and the delay is therefore harmless.
After a review of the evidence, this Board cannot find that there was substantial evidence
in the record to sustain the Carrier's position. Claimant returned to the West Hump to find that
the rest of his crew had been dismissed. He testified, and the Yard Master agreed, that it was
common practice for one member of a crew to check with the Yard Master. (TR. 47, 53-54) The
single crew member would advise the other crew members and they would then leave
en masse -
without each consulting with the Yard Master. (Tr. 53-54) Here, the Yard Master consulted with
the Manager of Yard Operations and the first two crew members were dismissed. Further, if part
of a crew was dismissed, there would generally be no work for the remaining member or
members of the crew. There is no evidence in the record that Claimant was told to report to
anyone after his urinalysis. (Tr. 45) Rather, when Claimant was brought back to the West Hump
office after his urinalysis and learned that his crew had been earlier dismissed, he was reasonable
in assuming that he too was released.
Based upon the record, the Board concludes that it was improper for the Carrier to issue
the 5-day suspension to Claimant. Claimant is exonerated, his record shall be expunged of the
Suspension, and he shall be made whole. Claim sustained.
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Award
Claim sustained.
Order
This Board, after consideration of the dispute identified above, hereby orders that
an Award favorable to the Claimant(s) be made.
Robert A. Henderson Richard M. Draskovich
Carrier Member anization Member
ri n lauss
Neutral Member
Dated thi
s day of
'AA" ! 2006.
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