PUBLIC LAW BOARD NO. 5124

Award No. 276
Case No. 291
Carrier File No. 1405614
Organization File No. AK701-257-41-E

Parties to Dispute:   UNITED TRANSPORTATION UNION

                                                -and-

                              UNION PACIFIC RAILROAD COMPANY

Statement of Claim:   Engineer L H. Hoffman, for the removal of the discipline entry from his personal record for the alleged first offense violation of the UP Attendance Policy and the UPGRADE Progressive Discipline Policy - Behavior Modification Policy, and he be compensated for any and all lost time, including any deferred suspension served if any, plus time spent attending an investigation held on August 4, 2004, when charged with an alleged responsibility "in connection with the report that while employed as Engineer, on the XE65 Board, headquartered in South Morrill, NE, that you allegedly failed to protect your employment by excessively absenting yourself from service between the period from March 1, 2004, through the present (June 30, 2004), while demonstrating frequent weekend layoffs, frequent sick/sickness in family layoffs without medical documentation, and lower availability when compared to your peers."

INTRODUCTION

This Board is duly constituted by agreement of the parties dated March 13, 1991, as amended, and as further provided in Section 3, Second of the Railway Labor Act ("Act"), 45 U.S.C. Section 153, Second. The Board, after hearing and upon review of the entire record, finds that the parties to this dispute are a Carrier and employee representative ("Organization") within the meaning of the Act, as amended.

FINDINGS

The claimant, engineer J. H. Hoffman, was assigned to the Carrier's XE65 board at South Morrill, Nebraska. On January 26, 2004, Manager of Operating Practices (MOP) B. E. Schulz held a conference with the claimant concerning his attendance. During the conference, MOP Schulz discussed the claimant's frequent weekend and other uncompensated personal layoffs. Following the conference, the claimant provided MOP Schulz with medical documentation regarding his wife's illness. On or about July 23, 2004, MOP Schulz had a telephone conversation with the claimant at which time he informed him of the need to file an application for leave under the Family and Medical Leave Act (FMLA).

The Carrier subsequently reviewed the claimant's work history for the period March 1 through June 30, 2004, and determined that he had violated the TE&Y Attendance Policy, dated January 15, 2004, as well as several rules contained in the General Code of Operating Rules (GCOR). As a result, the Carrier issued the claimant an investigation notice dated July 30, 2004, which provides, in pertinent part, as follows:

This letter refers to your attendance record during the period from September 1, 2003 through the present (June 30, 2004). It has been determined there is sufficient evidence to warrant a Union Pacific Railroad TE & Y Attendance Policy violation charge. You have two choices in regard to this charge:

* * *

(2) If you choose not to waive your rights to a formal hearing, this is a notice to appear for an investigation. Report to ... develop the facts and determine your responsibility, if any, in connection with the report that while employed as Engineer, on the XE65 Board, headquartered in South Morrill, NE, that you allegedly failed to protect your employment by excessively absenting yourself from service between the period from March 1, 2004, through the present (June 30, 2004), while demonstrating frequent weekend layoffs, frequent sick/sickness in family layoffs without medical documentation, and lower availability when compared to your peers.

* * *

Following the formal investigation conducted on August 4, 2004, the Carrier issued the claimant a notice of discipline which provides, in pertinent part, as follows:

* * *

The evidence adduced at this investigation established that you failed to protect employment by excessively absenting yourself by frequent pattern of holiday layoffs, and a layoff percentage not comparable to your peers, while employed as Engineer with Union Pacific Railroad.

Your actions are in violation of the Union Pacific Attendance Policy and General Code of Operating Rules, Rules 1.13 and 1.15, as adopted and modified by Union Pacific Railroad.

Therefore, you are hereby notified that a "First Offense" Violation of the Union Pacific Attendance Policy is being recorded on your personal record. You are instructed to immediately mark up and remain available on a full time basis.

* * *

The claim was subsequently appealed by the Organization and denied by the Carrier at each step on the property. For the following reasons, the Board finds that the claim must be sustained as a result of the procedural violation committed by the Carrier.

The Organization asserts that the Carrier failed to comply with the time limit provision regarding the issuance of the investigation notice to the claimant. Section 3 of the System Agreement - Discipline Rule entitled, "Notice," provides:

3. Within 10 days of the time the appropriate company officer knew or should have known of an alleged offense, the engineer will be given written notice of the specific charges against him or her. The notice will state the time and place of the investigation and will be furnished sufficiently in advance to allow the engineer the opportunity to arrange for representation by a BLE representative(s) (the BLE Local Chairman or other elected BLE Officers) and witnesses. The notice will propose discipline to be assessed if investigation is waived and designate a carrier officer who may be contacted for the purpose of arranging for an informal conference on the matter. A copy of the notice will be furnished to the BLE Local Chairman.

The evidence of record presented in this case establishes that the notice of investigation was issued to the claimant, via certified mail, on July 30, 2004. However, the notice of investigation charged the claimant with violating the TE&Y Attendance Policy during the period September 1, 2003 through June 30, 2004. The evidence further reveals that the Carrier was well aware of the claimant's work record during the time frame covered by the charge. Moreover, an employee's work history is a record which is maintained and available to the Carrier at all times.

For these reasons, the Board finds that the Carrier violated the applicable discipline rule when it failed to issue the notice of investigation to the claimant within 10 days of the time the appropriate company officer knew or should have known of the alleged offense committed by the claimant. Accordingly, the claim must be sustained.

AWARD

         The claim is sustained.

Robert A. Henderson, Carrier Member    

Michael J. Reedy, Employee Member

Jonathan I. Klein, Neutral Member

This Award issued the 24th day of August, 2005.