Y·
BEFORE PUBLIC LAW BOARD NO. 6942
UNITED TRANSPORTATION UNION
VS.
Case 31
UNION PACIFIC RAILROAD
PETITIONER'S STATEMENT OF THE CLAIM
Appeal filed on behalf of employees K.A. Olsen, EID 0411813 and K.S. Raether,
EID 0413443, as a result of the formal investigation held on July 14, 2005, at Seattle,
Washington resulting in Level 3 discipline administered (5 days suspensions).
- POSITIONS
ORGANIZATION
The Carrier violated the procedural provisions of the applicable agreement in four
ways. First, it did so by not giving the two employees written notice of the specific
charges. Both Claimants testified that they receive the notices of disciplinary hearing, but
only received the notices of postponement. Second, the notices of investigation were
sent to the wrong representative. Third, the notices failed to properly identify the time of
the alleged violation. While such an error may have been "typographical," the Carrier's
disregard for factual accuracy equaled a disregard for the Claimant's guilt
or
innocence in
this mater. Fourth, the Carrier failed to provide the Claimants' representatives with
copies of the waivers of hearing. The Carrier also failed to prove its allegations against
the Claimants and that the sting discipline was therefore arbitrary and unwarranted.
The Organization's procedural objections do not have any merit. The Hearing
Officer considered all objections and none were considered sufficient to warrant
canceling the hearing. The objections were also considered and rejected on appeal. The
Carrier afforded the Claimants a full and fair hearing. The Carrier's position as to the
merits is supported by substantial evidence and, therefore, must be sustained by this
Board
DISCUSSION
Failure to Provide Representative with Wavier of Hearing Document as Requested
1
The Organization contends that the Carrier failed to provide Claimants'
Representatives with copies of the waivers of hearing, form EC&L #2, as requested by
the Organization in writing (hearing ex 7, item 2) on July $, 2005. The Carrier revoked
the Claimant's remote licenses on June 14, 2005, on the mistaken basis that they had both
proceeded through a signal without proper authorization and conducted a backing
movement without proper authorization. Only the former required revocation. There is
an allegation that they may have been denied representation by the Organization.
Claimant Olson testified that he signed the form on June 14 "under pressure." There is
an allegation that K. S. Raether also signed a similar notice, but she did not testify on the
point. The revocation was later rescinded on about June 28, 2005, after the Carrier was
informed of its error. The Carrier never provided copies of the waivers to the
Organization. The Organization raised this objection at the July 14, 2005, hearing. The
hearing officer over-ruled this objection and the Carrier denied the objection on appeal.
The applicable Memorandum of Understanding provides in relevant part at
Section V, Paragraph D: "When request is made sufficiently in advance the employee
and/or the UIU local chairperson or the UTU local chairperson's designee will be
allowed to examine material or exhibits to be presented in evidence prior to the
investigation. At the investigation, the . . . UTU . . . will be afforded the opportunity to
examine witnesses or cross-examine witnesses.
Such
examination will extend to all
matters under investigation . . . . . " . The Organization is entitled to have the Carrier
produce documents which the Organization intends to use in cross-examination of
witnesses.
The Organization attempted to attack the credibility of the Carrier witness as to
his motivation in imposing discipline in this case. The fact that employees were coerced
into signing a waiver is evidence that the Carrier suspected their innocence. The fact that
both signed waivers on the same date and same time, if shown by documents, strongly
supports the argument of both that they were coerced.
Taken with other evidence overall the Organization had the opportunity to show
that the reason that the Carrier was motivated in obtaining the highest level of discipline
it could impose was to
minimize
the embarrassment it faced for the error. There was
testimony by the employees implying they inadvertently allowed a very sort reversing
movement. The Organization was entitled to cross examine to the effect that the Carrier's
motivation led it fail to investigate if there were any inadvertent movement.
. The Carrier's actions in ignoring the Organization's request for documents useful
in cross examination violated the agreement. The discipline imposed must be set aside.
AWARD
That since the Carrier violated Section V, Paragraph D of the Memorandum of
Understanding in ignoring the Organization's request for documents useful in the crossexamination of witnesses, the discipline of both Claimants is set aside. They shall be
made whole for all lost wages and benefits. This award shall become effective fifteen
2
J qo~
Aob,
No, 3 /
(l5) days from the date hereof unless either party requests her proceedings in writing,
with a'copy to opposing party.
Dated this 190' day of June, 2006,
T dissent:
Richard Henderson
Carrier Member
Robert Draskovich
Organization Member
'Stanley H. ~vlich~lsfetter II,
Referee
Rises
Henderson
Carrier Member
Q~Z~
Robert-1'Jraskovich
Organization Member
3