File 930504


Parties Brotherhood of Maintenance of Way Employes
 to and
 Dispute Union Pacific Railroad Company
 (Former Missouri Pacific)

 Statement
 of Claim: (1) Carrier violated the Agreement, especially Rule 12,
 when M. M. Jackson, SSN 459-50-6676, was assessed a 42-day
 actual suspension.

        (2) Claim in behalf of M. M. Jackson for removal of the 412day actual suspension from his record and pay for wage loss suffered beginning March 24, 1993 through May 4, 1993.


Findings: This Board has jurisdiction of this case by reason of
 the parties Agreement establishing the Board therefor.
 The Claimant, a Trackman for some 22 years, had bid in
 a new assignment. He was assigned to Gang 1635 at Beaumont,
 TX. The Claimant thought he had been released from Gang
 1635 by his Foreman Guillory on Thursday, March 18th and he
 reported to Gang 2268 the following Monday, March 22, 1993.
 Bulletin Rule (11(d)) states that:

        "When an employee is assigned to a position per paragraph (c) he will be permitted to transfer to his new position as soon as provision can be made for his release but in no event shall he be held for more than twenty (20) days."


        The Claimant was notified to attend a formal investigation on the charge:


        "1. Failed to comply with the instructions of MTM R. V. Brewer to report to your assignment as Trackman on Gang 1635 on March 23, 1993 at Beaumont, TX and


        2. Conducted yourself in an argumentative and quarrelsome manner during your conversation with MTM R. V. Brewer at approximately 12:35 p.m. March 23, 1993 near Mile Post 402 on the Beaumont Subdivision while you were working as a Trackman on Gang 2268..."


        The Carrier concluded from the investigation conducted on April 20, 1993 that Claimant was culpable. He was

                        -2- Award No. 628


        assessed a forty-two (42) day actual suspension as discipline therefor.


        Claimant was accorded the due process to which entitled under Rule 12.


        There was sufficient evidence to support the conclusion that the Claimant was not in compliance with the radio instructions issued by MTM Brewer on the morning of the 22nd. It is clear that the Claimant found out that he was the successful bidder to new Gang 2268, that he had that information before he took the personal day off on Friday and that he took it upon himself to leave his old gang for the new assignment in order to cover it on Monday in violation of Agreement Rule 11. The prime purpose of paragraph (d) if the Bulletin Rule was to maintain stability in the situation created by a frequency of movement of successful applicants on bids. Consequently, the situation was created when he told his foreman that he was going to the new gang on Monday. That does not constitute the release as set forth in paragraph (d).


        In Claimant's 23 years of service he had the opportunity to have bid many times under that rule. That fact provides the basis for the presumption that the Claimant knew the rule. While the agreement rule was not introduced in the investigation, the agreement always is in evidence. Most of the 43 page transcript was devoted to maintaining the respective positions on what might be called hierarchal authority. Notwithstanding, the discipline imposed in the circumstances appears excessive and it will be modified to a fifteen (15) day suspension.


Award: Claim disposed of as per findings.

        Order: Carrier is directed to make this Award effective within thirty (30) days of date of issuance shown below.


6. C

D. A. Ring, Carr 'er ember

                  Arthur T. Van Wart, Chairman and Neutral Member


Issued Brooksville, Florida June 27, 1994.