Docket #6
Carrier LR File: 1419437-D
Parties to the Dispute:
Union Pacific Railroad Company
and
United Transportation Union
Statement of Claim:
"Claim of Yardman R.B. Schultz 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."
Findines:
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.B.
Schultz was a Switchman in the Operating Department at the North Platte Service Unit.
Claimant has service dating from December 5, 1999.
A review of the record shows that Claimant was working as a pilot on train
#N103 on November 1, 2004. Grievant was seen stepping from the locomotive as it was
moving by K.M. Seachord, the Manager of Road Operations. Mr. Seachord approached
Claimant and spoke with him. Mr. Seachord prepared a Field Debriefing Form at the
scene and Claimant signed it in his presence.
Carrier advised Claimant in a certified letter dated November 2, 2004, that there
was "sufficient evidence to warrant the discipline process to continue" and a Behavior
Modification Form with attached Behavior Modification Waiver was included with the
letter.
Carrier advised Claimant in a certified letter dated November 10, 2004, that an
investigation would be held "...in connection with your responsibility, if any, for: While
employed as a pilot on 11/1/04 on job #N103 at approximately 1126 his, you allegedly
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got off moving equipment. This is a possible violation of Special Instruction effective
April 1, 2004." The investigatory hearing was held on November 15, 2004. The Carrier
notified Claimant in a letter dated November 24, 2004, that:
...the following charges against you have been sustained: While
employed as a pilot on 11/1/04 on job #N103 at approximately
1126 his, you allegedly got off moving equipment. This is a
possible violation of Special Instruction Effective April 1, 2004.
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 argues that the discipline must be set aside because the Carrier
committed a serious procedural violation of Yard Schedule Item 17 when it failed to
provide the Organization's representative with a copy of the waiver of hearing offer. The
Organization further claims that the discipline was unwarranted because the Carrier was
unable to meet the burden of proof. The Organization contends that the Carrier failed to
prove that Claimant violated Rule 81.4.2 because he was getting off the train for an
emergency and emergencies are a recognized exception to the Rule.
The Carrier maintains that the burden of proof has been met and that 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 an admission by Claimant that he got off a
moving train. The Carrier continues that there were no procedural violations, and even if
there was a procedural violation, the error was harmless.
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.
After a review of the evidence, the Board finds that there was a procedural defect
that affects the discipline. Item 17 provides, in pertinent part, the procedure for a waiver
of hearing:
"The employe[e] will be apprised in writing of the charges against
him and the discipline proposed, by the Superintendent or his
representative, by mail or in person. A copy of the notice shall be
furnished to the local chairman of the craft involved. (a) When the
notice is delivered to the employe[e] by mail, the local chairman's
copy will be mailed at the same time."
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The record in the instant matter shows that Claimant was served his notice of waiver in a
timely manner via certified mail. However, during his representation of Claimant at the
investigatory hearing, the Local Chairman clearly made it a matter of record that he had not been
notified pursuant to Item 17. (Tr. pp. 13-14) The Local Chairman reiterated the procedural
defect in his letter to the General Superintendent appealing the discipline. Despite the General
Superintendent's letter to the local chairman dated December 9, 2004, that mentions attached
documentation of items that were mailed, there is no attachment in the record that shows that the
Local Chairman was mailed a copy of the waiver of hearing offer.
Item 17 requires that the Local Chairman be furnished a copy of the charges against the
employee and the proposed discipline that is contained in the waiver of hearing offer.
PLB 5912
Award No. 17 and PLB 5912 Award No. 59, cited by the Organization, present persuasive
reasoning for the proposition that failure to comply with Item 17 leads to the conclusion that the
hearing was not held in accordance with the terms of the agreement between the Carrier and the
Organization. Accordingly, we find that any discipline arising out of the hearing must be set
aside.
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.
Award
Claim sustained.
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Order
This Board, after consideration of the dispute identified above, hereby orders that
an Award favorable to the Claimant(s) be made.
& A66M
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Robert A. enderson Richard M. Draskovich
Carrier Member ganization Member
Brllauss
Neutral Member
Dated this day of 2006.
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