DISPUTE: CLAIM OF PETITIONER: (1) Reinstatement to the position of car inspector from which he was dismissed by the carrier on July 15, 1948.
(3) Payment for loss of earnings from July 15, 1948 to the date of hearing.
PETITIONER'S STATEMENT OF FACTS: Petitioner commenced employment with the carrier on October 30, 1925, as a laborer. Since 1941, he was employed as a car inspector and so classified, and he was employed as such on May 25, 1948. Due to a temporary layoff, he took a car oiler's job about June 4, 1948 and was employed as such until July 15, 1948.
Petitioner, who is married and has two children, became sick and unable to work because of a heavy cold and diarrhea. Because of this condition, he telephoned his superior, Mr. L. R. Smink, on May 25, 1948, and requested him to notify Mr. Philip DeRose to report him "off" because of his sickness and inability to work. His sickness continued, as well as his inability to work, from May 25, 1948 to June 2, 1948. On May 26, 1948, despite his sickness, he came to the carrier's office to pick up his pay check, which was a matter of necessity in order to provide for himself and his family. His sickness and inability to work is supported by a medical report which was supplied to the carrier. (See Exhibit G.)
Despite his sickness and his inability to work, and his reporting said fact to the carrier, petitioner received a notice, in the form of a letter, dated June 4, 1948, requesting him to be present at the foreman's office, Greenville car shop, on June 8, 1948, at 1:30 P. M., EST, to answer the charge "Failure to comply with Regulation 8-I-1 of the current Agreement for the government of employes of the M of E Department, Greenville CT Yard, May 27, 1948 to June 2, 1948," a copy of which notice is submitted herewith and identified as Exhibit A. A hearing was held, at which petitioner was not represented.
Because of his sickness and inability to work from May 24, 1948 to June 2, 1948, petitioner was charged with failure to notify his foreman of his inability to work. As a result, petitioner was dismissed from service on July 15, 1948. It is from this dismissal that petitioner presents his grievance, which he contends was illegal, improper and arbitrary.
The carrier submits there is no evidence that its action in disciplining the claimant in this case was in any way arbitrary, malicious, or in bad faith; and contends that, on the other hand, the discipline was only imposed upon the claimant after full investigation and trial, and on the basis of undisputed evidence of the claimant's guilt of the offense with which charged.
Therefore, your Honorable Board is respectfully requested to deny the claim in this matter.
The carrier demands strict proof by competent evidence of all facts relied upon by the claimant with the right to best the same by cross examination, the right to produce competent evidence in its own behalf at a proper trial of this matter, and the establishment of a proper record of all of the same.
FINDINGS: The Second Division of the adjustment Board, upon the whole record and all the evidence, finds that:
The carrier or carriers and the employe or employes involved in this dispute are respectively carrier and employe within the meaning of the Railway Labor Act as approved June 21, 1934.
A hearing was afforded the parties on September 29 1953. The claimant, Nicholas W. Pico, presented his grievance to this Division without first progressing said grievance up to and including the highest operating officer of the carrier designated to handle such disputes, as required by Section 3(i) of the Railway Labor Act.
The rules of procedure of the National Railroad Adjustment Board require that "No petition shall be considered by any Division of the Board unless the subject matter has been handled in accordance with the provisions of the Railway Labor Act, approved June 21, 1934."
Due to the claimant's failure to pursue the required method of presenting his grievance this Division of the National Railroad Adjustment Board is without power to pass upon his claim. 1718-11 1.92