NATIONAL RAILROAD ADJUSTMENT BOARD
SECOND DIVISION
The Second Division consisted of the regular members and in,
addition Referee Harry Abrahams when award was rendered.
PARTIES TO DISPUTE:
SYSTEM FEDERATION NO. 12, RAILWAY EMPLOYES'
DEPARTMENT, AFL-CIO (Machinists)
CHICAGO AND NORTH WESTERN RAILWAY COMPANY
DISPUTE: CLAIM OF EMPLOYES:
1. That the Chicago & North Western Railway Company violated
the collective agreement and unjustly treated Machinist R. J.
Brackemyer when it suspended him from service on Sept. 22, 1964,
and discharged him from service on Oct. 1, 1964.
2. That accordingly, the Chicago & North Western Railway Company be ordered to reinstate this employe with seniority rights unimpaired and compensate him at Machinist pro rata rate plus six percent
(6%) interest for all wage earnings deprived of; also fringe benefits
(vacations, holidays, premiums for hospital, surgical, medical and
group life insurance) deprived of since Sept. 22, 1964, until restored to
service.
EMPLOYES' STATEMENT OF FACTS: Mr. R. J. Brackemyer hereinafter referred to as the claimant was employed as a Machinist by the Chicago
& North Western Railway Company, .hereinafter referred to as the carrier,
at Clinton, Iowa.
The Car Shops Superintendent Mr. R. E. Powers suspended the claimant
from service at the close of his shift on August 31, 1964. On September 1, 1964,
Car Shops Superintendent R. E. Powers charged the claimant as follows:
"CHARGE: Your responsibility for absenting yourself from your
assignment from approximately 8 P. M. to conclusion of your assignment at 12 Midnight on September 21, 1964."
The investigation was held as scheduled on September 29, 1964. Supt. R. E.
Powers appeared as the interrogating officer. On October 1, 1964, Car Shops
Superintendent R. E. Powers dismissed the Claimant and wrote him as follows:
"Your responsibility for absenting yourself from your assignment
from approximately 8 P. M. to conclusion of your assignment at 12
Midnight on September 21, 1964."
safe operation. It is for these reasons that this Board would hesitate
to interfere with the action of the carrier in cases such as we have
before us. It is quite evident that these claimants improperly assumed
that they would not be needed until Train 211 arrived at 6:15 P. M.
The assumption was not justified with the result that carrier was
forced to call on others to do their work. Carrier clearly had the right
to enforce its instructions and compel obedience to its orders which
were definite and positive. To hold otherwise would unduly restrict
the right of management to efficiently operate its railroad. Claimants
were given a hearing at which they had full opportunity to be heard
and to produce witnesses. The action of the carrier appears to have
been motivated by necessity and not by action that could be deemed
arbitrary or capricious. We can find no reason for interfering with the
action of the carrier."
There is no support for .the claim for reinstatement and pay for time lost.
The "statement of claim," in addition to reinstatement with pay for time lost,
also requests payment of six percent (6%) interest for all wage earnings
deprived of; also fringe benefits (vacations, holidays, premiums for hospital,
surgical, medical and group life insurance) deprived of since September 22,
1964 until restored to service."
It will be noted that rule 35, quoted above, refers to pay for time lost, but
makes no reference to fringe benefits claimed in this case. Under this rule
the claimant would be entitled only to. time lost less earnings in outside
employment (see Second Division Award No. 1638 involving the same rule
and the same parties), if he were entitled to reinstatement, which he is not..
It will be noted that the rule makes no provision for payment of six percent
interest or the fringe benefits referred to in the "statement of claim." In
this respect, the claim in this case constitutes in part a request for a new
rule, which is beyond the jurisdiction of this Board. The Board's authority
is limited .to interpretation of existing rules, and does not extend to promulgating new rules under the guise of interpretation of existing rules. See
Second Division Award No. 3883.
The claim is without merit and should be denied.
(Exhibits not reproduced.)
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.
The Claimant worked on the second shift of an assembly line. He did not
return to his shift after attending a union meeting from 8:00 P. M. to
9:00 P. M. His shift lasted until midnight.
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The rest of the employes that attended the said union meeting did return
to their job after the meeting.
AWARD
Claim of Employes denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of SECOND DIVISION
ATTEST: Charles C. McCarthy
Executive Secretary
Dated at Chicago, Illinois, this 28th day of April, 1967.
LABOR MEMBERS' DISSENT TO AWARD 5161
The Referee and Carrier members which constituted the majority in this
Award (5161) erred in their findings when .they stated:
"The claimant worked on the second shift of an assembly line.
He did not return to his shift after attending a union meeting from
8:00 P. M. to 9:00 P. M. His shift lasted until midnight.
The rest of the employes that attended said union meeting did
return to their job after the meeting."
Such casual inattention to the actual dispute of claim, controlling agreement rules and record as a whole before this Division, does violence to the
legislative intent of the Railway Labor Act, 3 first(i). Most certainly, it
rendered an injustice to the claimant, which he expected to receive under the
due processes of the collective bargaining agreement and the Act itself.
The actual dispute before this Division was:
1. The Chicago & North Western Railway Company violated the
collective agreement and unjustly treated Machinist R. J. Brackemyer
when it suspended him from service on September 22, 1964, and discharged him from service on October 1, 1964.
2. The remedial action sought under the dispute and agreement
was that accordingly the Chicago & North Western Railway Company
be ordered to reinstate this employe with seniority rights unimpaired
and compensate him at Machinist pro-rata rate, plus 6% interest for
all wage earnings deprived of; also fringe benefits (Vacations, holidays, premiums for hospital, surgical, medical and group life insurance) deprived of since September 22, 1964, until restored to service.
It is clear in the Award of the majority that they failed to take cognizance
of the controlling rules of the Shop Craft Agreement and the record as a
whole. In fact, they failed to treat with the specific dispute at all. The record
5161 15
reflects that the original charge placed by the Carrier against the claimant in
this instant dispute read:
September 24, 1964
Mr. Robert J. Brackemyer
2210 North 7th Street
Clinton, Iowa
Please arrange to appear for investigation as indicated below:
Time: 10:00 A. M.
Office: Superintendent of Car Shop, Clinton, Iowa
Date: September 29, 19&4
CHARGE: Your responsibility for absenting yourself from your
assignment from approximately 8:00 P. M. to conclusion of your
assignment at 12:00 midnight on September 21, 19644.
The charge itself did not make Machinist Brackemyer's actions contingent
upon other employes who may have also gone to the Machinist local lodge
meeting. Therefore, reference -to other employes and their actions by the
majority is not proper and has no meaning or substance in the conclusion of
facts of these findings.
The record reveals that the claimant was a local Shop Committee Chairman and Vice President of the local lodge. On these very undisputed facts, the
claim-ant is set apart from other employes of the craft at his point of employment; because he was elected by the others belonging to the union to represent them under the provisions of the Railway Labor Act and the controlling
shop craft agreement Rule 36.
"RULE 36.
EMPLOYES' REPRESENTATIVES
The Railway Company will not discriminate against any Committeeman who from time to time .represent other employes . . ."
This rule speaks for itself relative to the claimant's rights as a Com.
mitteeman. There is no question but that he was representing other employes
at his local union meeting. Such representation includes on and off the Carrier
property.
Further, .the record reveals that the claimant was also Vice President
of this local lodge. This necessitated him to be present during the entire
course of business of his union. The transcript of the investigation, as well
as the record as a whole, is replete with statements that -the claimant had
permission from his foreman to check out; and his reason was to go to union
meeting. Therefore, the claimant received permission to leave the Carrier's
property, was not under pay or salary from the Carrier, and committed no
violation of any rules.
It is well established in the field of labor relations that the Carrier in this
instant case had the :burden to prove their charge against this Shop Com-
5161 16
mitteeman. This is sound doctrine in disciplinary matters; it is essential that
employes be protected against abuse of discretion in Management judgment.
It follows that this principle of fair play and justice should also be true and
expected from the highest tribunal established by Congress to hear minor
disputes such as we have in this instant case.
The claimant was denied all of these principles when the majority upheld
the Carrier's most extreme penalty that an employe could receive from the
hands of an employer: "COMPLETE DISCHARGE."
We are compelled to dissent.
R. E. Stenzinger
E. J. McDermott
C. E. Bagwell
O. L. Wertz
D. S. Anderson
Keenan Printing Co., Chicago, 111. Printed in U.S.A.
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