PUBLIC LAW BOARD NO. 6712

Case No. 9
Award No. 9

United Transportation Union      )
                                 )
                              vs ) PARTIES TO DISPUTE
                                 ) Union Pacific Railroad Company
                                 )   

STATEMENT OF CLAIM

Request of Switchman S.A. Kelly, Los Angeles Service Unit, for removal of a Level 2 discipline assessment from his personal record and for earnings lost during his attendance at the formal investigation held on March 31, 2003.

This Board finds the parties herein are Carrier and Employee within the meaning of the Railway Labor Act, as amended, and that this Board has jurisdiction over the dispute involved herein. The parties to said dispute were given due and proper notice of hearing thereon.

On April 29, 2003 the Carrier assessed the Claimant with a Level 2 discipline. As a result of an investigation held on March 31, 2003 the Carrier found that the Claimant was excessively absent, a violation of Rules 1.15 and 1.13.

On March 24,2003 the Carrier cited the Claimant to attend an investigation. The letter read in part:

The purpose of this investigation is to develop the facts and determine responsibility if any, in connection with your alleged failure to comply with instructions directing you to minimize absences from work and meet the employment requirements of your assignment as reviewed with you in an Absenteeism Conference on November 22, 2002. In addition, your alleged continued failure to protect employment by excessively absenting yourself from service while employed as Switchman with the Union Pacific Railroad.

The Carrier has the burden to prove the Claimant violated its Rules. While the Claimant may have been excessively absent, the notice does not specify the period during which the absenteeism occurred.

Also, the Carrier's witness, who was given a copy of the Claimant's work record by Crew Management Services, could not testify to its accuracy. The Carrier's witness testified as follows:

Q. So we have 1, 2, 3, 4, 5 errors in the calendar. What did this happen (sic)?

A. I have no answer to that, That's a CMS problem.

Q. So, you are not here to represent CMS with this calendar?

A. I'm here to speak upon the initial conference. I'm not representing CMS.

* * * * *

A. I cannot speak to the errors in CMS

The Carrier has failed to meet its burden in this case. In sustaining the claim this Board is not condoning absenteeism.

Claim sustained. Carrier is ordered to comply with this Award within 30 days of its date.

R.G. Richter, Chairman
Neutral Member

Frank Tamisiea                                        J. Kevin Klein
Carrier Member                                        Employee Member

Dated: 08/10/04