Case No.:· 18/Award No.: 18
System File No.:UP:15785 l7/BMWED:UP502JF12
Claimant: Jaime Alvarez
UNIONPACIFICRAILWAYCOMPANY)
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-and- )
) BROTIIBRHOOD OF MAINTENANCE ) OF WAY EMPLOYES DIVISlON )
Organization's State111ent of Clalnu
The Level 4, Discipline and 10 day suspension without pay to Mr. J. Alvarez for an alleged violation of Union Pacific Rule 1.13 (Reporting and Complying with htstructions) and Rule 1.15 (Duty Reporting or Absence) was not justified.
As a consequence of the violation referred to in Part 1 above, the Claimant shall be reinstated with all rights due to him under the Collective Bargaining Agreement.
Facts:
By letter dated October 10, 2012 the Claimant was directed to attend an
investigation and hearing on October 16, 2012 "to develop the facts and place responsibility, if any, that while employed as a Machine Operator on Gang 9160, at Houston, Texas, you allegedly failed to comply with instructions for taking days off and being absent without authority on September 14th, 2012."
The letter further noted that Rule 1.13 and Rule 1.15 were allegedly violated. The investigation was postponed first to November 8, 20l 2 and again to November 14, 2012.
Carrier Position:
The Claimant's failure to call his acting Track Supervisor prior to missing work and the failure to provide documentation upon his return constituted substantial evidence of his infractions. Documentation was provided only after the Claimant was charged. Tie Gang South Policy, Sections A and B were violated. The Claimant's one minute call after the beginning of his tour was insufficient. As in other cases where discipline was
upheld, the Claimant had not received authority to be absent. The Can·ier has provided substantial evidence of the Claimant's violations, which destroyed trust and created a safety issue. Therefore the discipline was appropriate and should not be set aside by the Board. The Claimant was given a fair and impartial hearing after a mutually agreed upon postponement.
Unilateral postponement of the investigation by the Carrier violated Rule 22. Thereafter the CaITier failed to meet its burden of proof. The allegedly violated rules were never entered into the record and cannot now be considered by this Board. 111e Notification of Discipline makes no reference to the Tie Gang Policies allegedly violated, therefore this Board should not consider those policies. Even if they are considered there is evidence that the Claimant sought medical attention on September 14, 2012 and that Supervisor Ritch provided conflicting testimony about the Claimant's call on September 14, 2012. The policy concerning absenteeism is absurd as it requires two-day notice of illness or a call one hour before starting time when the Claimant was violently ill. The Level 4 UPGRADE discipline served only to punish and not to correct. The Claimant tried to comply with the policy but was prevented by illness from doing so and ultimately provided a doctor's note, although not on his first day back to work.
The Board has considered the procedural issues raised by the Organization: an alleged unilateral postponement of the investigation and the absence of the relevant rules and Tie Gang South Policy from the record. Rule 22(b) incorporates the parties' agreement that an "investigation may be postponed or time limits referred to herein extended by mutual agreement. .. " The investigation was initially scheduled for October 16, 2012, postponed first to November 8, 2012 and postponed again until November 14, 2012. The second postponement was mutually agreed to. Hearing Officer Jonathan C. Phillips responded to the Organization's objection to the alleged unilateral postponement as follows:
To your objection about the Postponement Notice, as you stated with our telephone conversation, due to other investigations being held the Nov- November
s•h date was the absolute earliest we could hold the investigation, due to other
investigations and people being on vacation
Due to the fact that you have multiple union representatives, and we are never aware of who's going to be representing each particular employee, there is no way for me to know who to contact to send the postponement out. So we gave it the original earliest date that we could hold the investigation and as per our conversation, it
was open to any day after that, so we mutually agreed to move it to November 14th
(Carrier Exhibit A, Transcript, pp. 11-12).
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The explanat,ion pn,vided subst tial ev,idenee that: tlie first p<>Stpo m nt was unilateral. The mutbal postpotl.emenl that followed did not: cure du,; violation of.Rule 22(b),. :whiqh is;eleat:anci< unambiguow;. El.et1t st: the 11oard mµ$t honor the iauguage of the collective bargaining,agreement,the'elaim must be sustained witlroutcc;msideration.of the merits Con iderado\J of. .the OtgBnfaatmn•s challenge .lmsed ort the absence of relevan&:rulcs d Tie Gang Sol!th Policy i$ mQQt.
Cfaim susra,hted.
The Boar after consideration of the dispute identified above; herebyord"'5' that tho reCQl'd f.)f tho Clai r be clellted an& that be b - reimbursed fot arty net loss .ot compensation resufting from the imposition oflhc Le [ 4 UPGRADE discipline,., Tfto. Carrier it to make. the award effectiYe on or befon, the thirtieth (3{)"iJ day after the award isadopted;. · · ·
Andrew Mulfo Orgpnization Membet 
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Austin. Te;J(aS!
February 6,.201S