Case No.: 17/Award No.: 17
System File No.:UP: 1576496/BMWED: UP440LWI 2
Claimant: Richard J. Dunlap, III
UNION PACIFIC RAILWAY COMPANY )
)
-and- )
) BROTHERHOOD OF MAINTENANCE ) OF WAY EMPLOYES DIVISION )
l. The Level 5 UPGRADE discipline assessment (dismissal from service) to Mr. Richard J. Dunlap III for an alleged violation of Union Pacific Rule 1.6 Conduct (1) Careless of Safety, (2) Neg1igent, (4) Dishonest, (5) Immoral, and the part that reads "Any act of hostility, misconduct, or willful disregard or negligence affecti ng the interest of the company or its employees is cause for dismissal and must be reported. Indifference to duty or the performance of duty will not be tolerated," along with Rule 44.l Work Standards, as contained in Maintenance of Way Rules, Rule 4.15.5 Repair and Maintenance Plug Rail Replacement and Rule 4. 15.6 Remedial Action as contained in the Engineering Track Maintenance Field Handbook was harsh and unjustified.
2. As a consequence of the violation referred to in Part 1 above, the Claimant shall have the Level 5 removed, the Railroad will reinstate the Claimant immediately to his former position and/or right to exercise his seniority and compensate the Claimant for all lost time he could have worked and for any and all expenses he incurred while being dismissed from service.
By letter dated October 10, 2012 the Claimant was directed to attend an investigation and hearing on November l, 2012 "to develop the facts and place responsibility, if any, that while employed as Welder on Gang 1250 at Hooker, Oklahoma, near Milepost 457.03, at approximately 1030 hours on October 1, 2012, you allegedly failed to make a proper repair to the track by reinstalling a defective rail and trying to hide the defective rail by painting over the red paint and attempting to remove the markings on the rail that noted the defect present. This is considered to be an act of willful disregard of the safety of the railroad, not to mention dishonest and immoral.
There is substantial evidence establishing the Claimant's carelessness and negligencel including g his admission that he installed a defective railt which could have resulted in a catastrophic incident. The Claimant's disregard for safety was a vety serious infraction that justified dismissal. The Board should not set aside the Carrier's disciplina1y dete11nination.• There is strong decisional; suppott for the Carder's action. The Claimant was provided a fair and impartial hearing. The two statements that were not allowed in evidence were read into the closing statement SQ that they could be reviewed. The Organization's inability to question chel Daneef because she was not at the heating did not prejudice the Claimant since she
simply issued the Notice of Investigation and had no direct knowledge of the events in question.
The Claimant was denie:d a fair and impartial hearing. The Hearing Officer would not allow the handwritten, signed statements of Brandon McBride and Abel Olvera onto evidence; instead allowing them to be read into the Organization ts closing statement. The statements have shown that the Claimant did not install defective rail or pnt over indications of defects on the rail. Also, the Catder did not provide Director Operations Support Daneef,, who issued the Notice of Investigation, as a witness. There is ample st1pport including on-property awards, demonstrating the Cartier's responsibility to present all witnesses with pertinent information. Fm1hermore, Carrier has not met its burden of proof because it has not shown that the Claimant removed a defective rail and then used it to replace anothe1·l'a.il elsewhere or that he used paint to conceal marking on the rail showing that it was defective. The Carrier has re.lied on conjecture and speculation. The. dismissal was excessive because the Carrier has not shown a violation of aU seven rules listed in the charges and because disndssal is punitive rather than corrective.
The matter has been settled between the parties, therefot'e the case is dismissed.
v Lin
Andrew Mulford, Organization Member Katherine N. Novak Caniel' Member
Austin, Texas January 15, 2015
I. B. Helburn, Neutral Referee
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