PARTIES TO DISPUTE

SYSTEM FEDERATION NO. 6, RAILWAY EMPLOYES'

DEPARTMENT, AFL-CIO (Machinists)


CHICAGO, ROCK ISLAND & PACIFIC RAILROAD COMPANY




EMPLOYES' STATEMENT OF FACTS: The Chicago, Rock Island and Pacific Railroad Company, hereinafter referred to as the carrier, maintains a diesel shop at Enid, Oklahoma Machinist Buddy D. Wright, hereinafter called the claimant, was employed as a machinist at Enid. As the result of an investigation held October 3, 1963, Machinist Wright was dismissed from service effective October 9, 1963. On October 1, 1963, a "Notice of Investigation" was issued by Assistant Superintendent Mr. C. H. Gray, advising the claimant that he would be a principal in an investigation to be held in Mr. Gray's office at El Reno, Oklahoma, October 3, 1963.


This notice also contained the names of ten (10) other employes who were also to be principals. On October 2, 1963, a second notice was issued. In the second notice, the claimant was the only designated principal. The claimant was dismissed from service effective October 9, 1963, and was reinstated effective November 9, 1963.


On October 3, 1963, the claimant appeared at the office of the agent at Enid. He was accompanied by Mr. C. O. Borchers, Otis Cox and L. O. Marquardt to represent him at the investigation. These men comprise the machinist local committee at El Reno, Oklahoma, and the duly authorized representative of the claimant. However, at the start of the investigation, the claimant was







Claimant was only held out of service for one month for his rule violation -that was in no way excessive, but proper to serve the purpose of discipline.




Claimant was properly disciplined for his admitted noncompliance with carrier's rule's involving the proper testing of air brakes on Diesel No. 1227 on September 2;6, 1963.


Carrier believes it has shown that the discipline, dismissed for only one month, was not in any way capricious, excessive, or in abuse of carrier's discretion and the employes have not presented any evidence that this discipline should not be reversed. Therefore, your board should deny the employes 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 original notice of investigation was given to eleven employes, including Claimant "to develop the facts, discover the cause and determine your responsibility, if any, in connection with the handling of Dsl 1227 dead in Train No. 98, Sept. 26, 1963 from El Reno to North Enid and at North Enid, which resulted in damage to Dsls 1227 and 537 and the North Enid Engine House and violation of operating rules and MP-141, and rules and instructions in connection therewith."


By later notice the hearing was limited to Claimant, who was handling the diesel at North Enid when it went out of control, damaging itself, the other diesel, and the engine house.


The objection is made that Claimant was not afforded a fair hearing because he was limited to only one representative. This objection is based upon Award 3845, in which this Division said:




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 "But the Employes point out that this pargraph was adopted in 1935 and retained in subsequent agreements without change, and that during all that time both the Carrier and the Organizations have recognized that the local committees were entitled to represent employes in the handling of disputes, controversies and investigations with local officials during their working hours, without loss of time. Without denial by the Carrier they cite forty such instances of discipline hearings at four points in Arkansas, Kansas and Illinois between 1941 and 1958, an dstate that it is only a partial list. In view of this record the claim must be sustained."

As this Division pointed out in Award 5041 three errors in Award 3845 should be noted:


"First: The reference in the first paragraph cited to 'paragraph 7' of Rule 32 is erroneous, since the rule has no such paragraph; the reference should instead have been to 'the second paragraph' of the rule.


"Second: In the first paragraph of 'Position of Employes' in Award 3845, this provision is incorrectly designated as part of Rule 35, instead of Rule 32.


"Third: The second paragraph cited from Award 3845 is too broad in finding an established recognition 'that the local committees were entitled to represent employes in the handling of disputes, controversies and investigations with local officials during their working hours, without loss of time.' What the record showed, and what the Board should have found, instead of the words above quoted, was an established recognition that 'local committeemen are entitled to attend investigations during their regular working hours without loss of pay.'


"All evidence submitted in proof of the established custom was of numerous investigations at various points on Carrier's system at which committeemen were 'present with no loss of time while attending investigation' but with no reference to representation of the employe under investigation.


"Furthermore, the claim in that case was that the committeemen 'were unjustly denied pay while attending investigation' and their right to pay, which was sustained, was the only question before the Board."


Consequently Award 3845 is not valid authority for the theory that an employe under investigation is entitled to representation by all local committeemen and cannot have a fair hearing without it.


It has seemed advisable to point out the erroneous and irrelevant reference in Award 3845 to the representation of employes under investigation. But in this case any possible objection was waived by the Claimant's statement after the exclusion of the committeemen that he was ready to proceed with the hearing, and by his representative's statement:




It should be noted also that the only reference in the rules to representation of employes in discipline proceedings (Rule 34) is in the singular. Re-


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 gardless of committeemen's right to attend investigations without loss of time, it canont be held that their exclusion deprived Claimant of a fair hearing. We shall therefore proceed to consider the merits.

 It is contended that someone was at fault in transporting the diesel dead in the train with its air brakes inoperative; but that matter is not before us. If the diesel had not been delivered to Claimant in that condition his neglect to make a proper inspection might not have resulted in damage; but that does not excuse his neglect which he admitted as follows:


"Q. No."








"A. Yes.


"Q. Mr. Wright did you comply with this rule?

 "A. Yes with the previously stated exception.



It is objected that Claimant's loss of twenty-one days' wages constituted excessive discipline. While the amount of damage to the engine house and
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 the two diesels is not shown, it was apparently substantial, and in view of the fact that the results could have been even more serious, there is no basics for a conclusion that the discipline imposed was excessive.






Dated at Chicago, Illinois, this 3rd day of February, 1967.

 Keenan Printing Co., Chicago, Ill. Printed in U.S.A.
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