As stated, it is the position of the carrier that the responsibility of Mr. Maietta in connection with the charges preferred against him was fully developed and his dismissal was warranted and we respectfully request that the carrier's action not be disturbed and the claim denied.

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.

Parties to said dispute waived right of appearance at hearing thereon.

Rule 34 (g) provides that after thirty days' service an employe cannot be disciplined or dismissed without a fair and impartial hearing, and Rule 34 (h) provides for his full reinstatement if found to have been unjustly suspended or dismissed. However, the rules make no provision for direct appeals of suspensions or dismissals, which like other discipline decisions, and other claims and grievances, are governed by Sections (a), (d) and (e) of Rule 34.

Those sections provide that if an employe believes he has been unjustly dealt with, his claim shall be presented to his immediate supervisor, and that an unsatisfactory decision by him may be successively appealed through next higher appeal officers to the highest official designated to consider appeals.

Claimant being a machinist in the Milwaukee Diesel House, his immediate supervisor is the Roundhouse Foreman. The successive officers designated to hear his appeals are: (1) the Master Mechanic at Milwaukee; (2 ) the District Master Mechanic there; (3) the Superintendent of Motive Power there; (4) the Chief Mechanical Officer there; and (5) the Assistant to Vice President at Chicago.

The hearing under Rule 34(g) was held by the District Master Mechanic and he ordered claimant's dismissal on May 11, 1960, and his reinstatement on a leniency basis on May 16, effective May 17, 1960.

The claim is for compensation for the days lost, on the ground that claimant was unjustly suspended and dismissed; it was initiated by a letter to the Superintendent of Motoive Power on May 23, 1960 saying: "Kindly consider this a claim in behalf of Machinist J. J. Maietta, * * * for all time lost * * *."

Within the sixty days limited by Article V of the August 21, 1954 Agreement, the Superintendent of Motive Power denied the claim, both on the merits and because it had not been made to the Roundhouse Foreman within the time limit provision of Article V. Thus the time limit issue was raised by the first Carrier representative to whom the claim was presented. In that respect this claim differs materially from Award 3280, which is relied upon by claimant but in which the time limit issue was raised for the first time by the final appeals officer.

In Award 3280 it was said:

"As noted, the charge, hearing and discipline of Eggert were handled by the Master Mechanic, who is an officer superior to the Round House Foreman and thereby in effect waived its contractual requirement that this claim be initially presented to him. Under the circumstances, submission to the Round House foreman of a claim for reinstatement and payment for time lost, would have been an idle and useless act and was unnecessary. Since the Master Mechanic discharged Eggert, the proper step for seeking relief from the carrier's action was to appeal to the District Master Mechanic which was done by the claimant within the required time".

If, when Rule 34(a) was adopted, it had been the established practice to hold discipline hearings at or below the immediate supervisor's level, their change to a higher level might be construed as by-passing him and waiving the requirement that claims be presented to him. But in this record there is no claim, or even intimation, of such change, and we cannot presume that it occurred. Certainly this Board cannot conclude that adherence to a practice in the light of which a rule was made, makes its provisions idle, useless or unnecessary. That would be to rewrite the Agreement for them.

Presumably, therefore, in designating him the parties had other things in mind than the probable granting of claims at the first step; - perhaps procedural uniformity, so that there would be no room for doubt where to file claims; or perhaps the convenience of claimants and others in the local presentation and initial handling of all claims, wherever they may arise. The latter motive is strongly indicated by the provision of Rule 34(a) that the grievance is to be taken to the immediate supervisor by the local committee or by its representative. But whatever their motive, the record discloses no valid ground upon which this Board can overrule the parties' express agreement in Rule 34 (a) as idle, useless or unnecessary. It cannot be too often stressed that the parties are competent and entitled to make their own agreement (Illinois Central R. Co. v. Whitehouse, C.C.A. 7, 212 Fed. 2nd 22), and that an award of this Board which alters, changes or amends a collective bargaining agreement is an usurpation of power. (Hunter v. A.T.& S.F.Ry., C.C.A. 7, 171 Fed. 2d 594). Consequently we do not feel justified in following the precedent of Award 3280 in this situation.

The claim was not presented in accordance with Rule 34 (a) within the time limited by Article V of the August 21, 1954 Agreement, and the objection was not waived by the Carrier but on the contrary was raised by it at the first opportunity. Not being a valid claim it is not properly before us and must be dismissed.

AWARD