Board Type Public Law Board
Board Number 6942
Award/Case Number 9
Carrier Union Pacific Railroad Company
Union United Transportation Union
Date 30 May 2006
Statement of Claim
:
Claim of Conductor J.T. Guest for removal of a 5-day suspension and a 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.
Carrier's Position
:
The Carrier maintains that the Claimant, Conductor J. T. Guest, was
assessed a Level 2 discipline for violation Rule 8.15 of the General Code of
Operating Rules (GCOP). The rule reads as follows:
"8.15: Switches
Run Through
"Do not run
through switches, other than spring switches or variable
switches. If a rigid type switch is run through, it is unsafe and must be
protected by spiking the switch, unless a trackman or other competent
employee takes charge.
"An engine or car that partially
runs through a switch must continue
movement over the switch. The engine or car must not change direction
over a damaged switch un61 it has been spiked or repaired.
The Carrier maintains that the Claimant was disciplined based on the facts
developed through a formal investigation and was afforded a fair and impartial
hearing in accordance with the applicable agreement. The Carrier asserts
that the Organization did not raise any procedural objections during the
hearing or the on property handling of the claim.
The Carrier further maintains that it used the Claimant's own admission of
guilt to support the discipline assessed.
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Organization's Position
:
The Organization maintains that the Claimant did not receive a fair and
impartial investigation, that the Carrier failed to prove its allegations against
the claimant, and that the resulting discipline was therefore arbitrary and
unwarranted.
The Organization asserts that the Carrier prevented the Claimant from
receiving a fair and impartial investigation when it failed to call the Claimant's
engineer and fireman-in-training (FIT) to testify. The Organization asserted
"Road Schedule Rule 84° and previous Public Law Board awards as exhibits
in support of its position that the hearing was not fair and impartial. As a
result, the Organization asked that the instant case be set aside.
Beyond this threshold claim, the Organization maintains that the Carrier failed
to establish violated "Rule 8.2." (The Board must assume that this is a
typographical error since the Claimant's suspension was for the violation of
Rule 8.15. Rule 8.2 appears to be the applicable rule for "Locomotive
Department Employees" rather than
°Conducfors. °) The
Organization asserts
in essence
that there were unusual or extenuating circumstances that were
not considered in the mitigation of culpability of the Claimant.
1. The Claimant was riding the point and gave a stop signal with what he
believed was sufficient time to stop.
2. The Claimant testified that the switch was covered with shadows.
3. The inexperience of both the Claimant and the FIT contributed to the
incident and should have been considered in the decision to assess
discipline.
The Organization asserts that the Carrier did not meet its burden of proof and
that the discipline be reversed.
Public Law Board No. 6942, upon the whole record and on the evidence,
finds that the parties herein are Carrier and Employees within the meaning of
the Railway Labor Act, as amended; that this Board is duly constituted by
agreement of the parties; that the Board has jurisdiction over the dispute, and
that the parties were given due notice of the hearing thereon.
On the threshold issue, the Organization asked that the case be set aside
because the Carrier failed to call the engineer and FIT to testify. There is no
indication from the transcript of the hearing that the Organization requested
any additional witnesses and there is no testimony in the transcript that the
Organization was denied the opportunity to call any witnesses that it wanted
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to testify. The transcript shows that the Hearing Officer, Mr. R.W Kirby,
advised the Organization and Claimant of their right to examine and crossexamine any witnesses who may testify. The Hearing Officer further asked
the Organization if there were any objections that the Organization wished to
present at that time. Near the end of the hearing, the Hearing Officer asked if
either the Claimant or the Organization had any other evidence to present in
the hearing. From the transcript, it is dear that the Hearing Officer gave the
Organization sufficient opportunity to either call additional witnesses, request
that the Carrier provide additional witnesses that the Organization wanted to
call, and/or object if additional needed witnesses were not available.
The Claimant and the Organization have some affirmative responsibility to
call
(or ask for) witnesses if they believe that the witnesses are necessary for
a fair and impartial hearing. Numerous Public Law Boards address the issue
of failure to call witnesses. There are findings on both sides of the issue as it
relates to the Carrier's duty to call all possible witnesses. Referee William M.
Edgett in Public Law Board 987 Award 8 of February 23, 1973 stated, "In the
middle lies an area in which Carrier's obligation to call witnesses requested by
the accused or his representatives, who have relevant information bearing on
the dispute, is recognized." This Board also recognizes that finding. While
there is definite affirmative responsibility on the part of the Carrier to call
relevant witnesses who have knowledge of the incident, the Claimant and
Organization have some responsibility to let the Carrier know whom they wish
to have as witnesses and call to testify. They may certainly object and
establish a record of the Carrier's refusal to provide witnesses in the hearing
while there is opportunity for the Hearing Officer to address the issue of
witnesses. The Board then has a basis for determining whether the Claimant
was denied due process.
The evidence in this case does not support the contention that the hearing
was not fair and impartial. The testimony of the Claimant himself and the
Manager of Yard Operations (MYO) forms substantial evidence of the events.
Moving past the threshold issue, the Organization asserts that the Carrier
failed to establish that the Claimant violated Rule 8.15.
From the evidence, it is clear that the two leading wheels of the locomotive
ran through the switch. There is no dispute that the Claimant was "riding the
point" and that the night was clear so the FIT could clearly see the Claimants
signals.
The Claimant had exactly four months of service at the time of incident. In
the Cheyenne Yard, the Claimant testified that he had two weeks of
experience as a "conductor in training" and after that, he had made
approximately four setouts or pickups in the Cheyenne yard. Clearly, the
Claimant did not have a lot of railroad experience, especially as the conductor
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of a train. The locomotive was under the control of a fireman-in-training at the
time the switch was run. The Organization asserts that his lack of experience
may have been a contributing factor, too.
The Manager of Yard Operations (MYO), Mr. P. D. Urrichio, testified that after
he was notified that an engine had run through a switch in the yard, he drove
to the site, climbed up into the locomotive cab and talked to the crew. The
testimony indicates that there was snow on the ground between the rails.
However, the MYO testified that there was snow on the ground, but the
weather was clear (visibility was good). He stated that there was snow
between the rails, but there was no problem lining the switch.
The Claimant testified that the locomotive speed was not a problem or, he
would have signaled the
FIT
to reduce his speed.
There is no testimony in this record that would indicate that the experience, or
lack thereof, of the
FIT
was actually a contributing factor. It is impossible to
tell from the submissions if the FIT was truly inexperienced or was
experienced as a trainman who was because of circumstances being
retrained as an engineer. There simply is no evidence in the record to
support the contention that the FITS lack of experience in any way
contributed to the switch being run.
Decision:
The Board finds that the Carrier met its evidentiary burden of proving, by
substantial evidence that the Claimant failed to line switch which was run, and
as such, violated CCOR Rule 8.15.
The assessment of a five-day suspension may seem relatively harsh to a
comparatively new conductor, however, the discipline is consistent with the
Union Pacific's applicable "Behavior Modification Policy" and was not proven
patently arbitrary or capricious given the circumstances of record.
As the Chairman of this Board, I was particularly impressed by the attitude
and the desire of the Claimant to "do the right thing." After the locomotive ran
the switch, he handled everything professionally and was forthcoming in his
statements. From the statements of the Claimant in response to the
questions of the Hearing Officer (as well as the Claimants closing statement),
it is apparent that the Claimant had learned from this incident and from his
additional experience in railroading. Part of the purposes of discipline is
educational and to help ensure that the unacceptable behavior will not be
repeated. It is highly likely that the Claimant, who had very little actual
experience as a conductor at the time of the incident, has learned a great
deal from this experience. At the date of this Board, it has been
approximately eighteen (18) months since the incident. If the Claimant is still
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with the company and has not been disciplined for
any other infraction, I
suggest that the record of the discipline be expunged and not considered in
any subsequent progressive discipline.
Award
:
The appeal of the Claimant, Conductor J. T. Guest, is hereby denied. The
suspension stands and there will be no award of back pay or benefits.
However, if the Claimant has not had
any subsequent violations that resulted
in documented disciplinary action on or before the date of this award, the
record of this incident will be expunged from the Claimant's disciplinary
record without award of back pay or benefits. If the Claimant has been
subsequently disciplined as of the date of this award; the suspension for
running the switch on November 30, 2004 and the disciplinary record thereof
will stand as originally taken by the Carrier and may be considered in any
subsequent disciplinary action.
Brad~Gadbeny
Chairman and Neutral Member
R. A. Henderson ichard . Draskovich
Carrier Member Employee Member
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