NATIONAL RAILROAD ADJUSTMENT BOARD
SECOND DIVISION
The Second Division consisted of the regular members and in
addition Referee Adolph E. Wenke when the award was rendered.
DISPUTE: CLAIM OF EMPLOYES: That under the current agreement Cutting Torch Operator in the Carmen's Craft, John J. Heinen, was unjustly dismissed from the service at 3:30 P. M. Tuesday, July 29, 1952, and that accordingly the Carrier be ordered to reinstate him in the service with pay for all time lost retroactive to the aforesaid date.
EMPLOYES' STATEMENT OF FACTS: John J. Heinen, hereinafter referred to as the claimant, was employed by the carrier at Spokane, Washington, in the carmen's craft as a cutting torch operator on the Hillyard Shop Tracks for the past fifteen years. Nevertheless, the carrier elected on May 22, 1952, to summon this claimant to stand investigation at 10:00 A. M., Tuesday, May 27, 1952, on the grounds stipulated in copy of letter submitted herewith and identified as Exhibit A, and the investigation, as scheduled therein, was held which is affirmed by copy thereof submitted herewith and identified as Exhibit B.
The carrier made the further election to discharge this claimant at 3:30 P. M. on July 29, 1952, a total of 63 days after date of his investigation and this is affirmed by copy of letter submitted herewith and identified as Exhibit C.
The agreement identified as Schedule No. 3, effective September 1, 1949 is controlling.
POSITION OF EMPLOYES: It is respectfully submitted that Exhibits A, B and C indisputably disclose that:
The carrier wishes to state that the above report was read to this claimant's general chairman when this claim was discussed. Therefore, he had knowledge of it.
The carrier has shown that Claimant J. J. Heinen violated carrier's rules, therefore we hold that your Board cannot do other than deny this claim.
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.
This Division of the Adjustment Board has jurisdiction over the dispute involved herein.
The carmen of System Federation No. 101 make this claim in :behalf of Cutting Torch Operator John J. Heinen contending he was unjustly dismissed from Carrier's service on Tuesday, July 28, 1952. They ask that Claimant be reinstated with pay for all time lost.
Claimant had been employed for the past fifteen years at the Hillyard Shop Tracks of Carrier at Spokane, Washington, as a cutting torch operator. 1788-13 7S4
On May 22, 1952, he was notified he was to stand investigation at 10 A. M., on Tuesday, May 27, 1952. On July 29, 1952, based on the result of the investigation, he was notified that he was being discharged as of 3:30 P. M. on July 29, 1952.
The charges on which Claimant was investigated were described in Carrier's letter of May 22, 1952, as:
It is contended this charge does not meet the requirements of Rule 26(e) of the parties' Agreement which provides:
Had the question been properly raised we think it could be said the charge made did not meet the requirements of this rule. However, Claimant appeared at the investigation with his representatives and witnesses and made no objection to the charge as made. It is apparent, from the record of the hearing, they all knew what it was Claimant was being charged with and consequently had no reason to object to going ahead. This provision is to protect the employes but it is a requirement that can be waived and that is what the parties actually did by the action they took.
It is contended the investigation held did not meet this requirement primarily because A. H. Malenke, Shop Superintendent, filed the charges, presided and asked questions, passed on the question of guilt, and imposed the penalty. There is nothing in the Agreement to the contrary and, in fact, the rule so contemplates for it provides the hearing shall be held by the Carrier, which naturally means an official thereof. As long as the official in charge of the investigation or hearing does not have to consider his own testimony in deciding the question of guilt, it cannot be said that such investigation or hearing has been unfair merely because an official of the Carrier is in charge thereof.
The evidence adduced is in conflict. If Carrier's witnesses are to be believed then Claimant was guilty not only of not staying on the job during his assigned working hours but also of being insubordinate and quarrelsome, the latter being contrary to Rules 16 and 18 of Carrier's "Rules and Instructions for Locomotive and Car Shop, Roundhouse, Repair Track and Maintenance of Equipment Employe", with which claimant was familiar.
It is true Claimant produced witnesses who testified to the contrary, but the question of deciding the conflict rested upon the official in charge of the investigation. There is ample evidence to support his finding.
Was the penalty imposed too severe? In the light of Claimant's past record, which Carrier had a right to consider in determining that issue, we do not think so.
In view of what we have said we do not think it can be held that Claimant was unjustly dismissed. 1788-14 785