EMPLOYES' STATEMENT OF FACTS: Mr. R.. G. Barnett, the Claimant, was employed at DeCoursey, Ky., as a Carman Helper by the Louisville and Nashville Railroad, hereinafter referred to as the Carrier, on December 13, 1965. He was working in an upgraded capacity as Car Inspector and was 26 years old at the time he was removed from his assignment by Special Services Employes.
At 11 P.M., on December 21, 1966, the Claimant reported for service on his regular assignment as Car Inspector in the DeCoursey Train Yards, at Location No. 78, and subsequent to the beginning of his tour of duty assisted other Car Inspectors in performing the necessary servicing, inspection and repair work on several trains.
Upon returning to the Car Inspectors' shanty after midnight, which was actually the early morning hours of December 22nd, the Claimant began eating his lunch. A few minutes later, one of the several L&N Special Services Employes, who were in and/or about the shanty when he
The other two witnesses, Assistant Inspector H. B. Noble, Jr., and Sergeant Robert Hagar, were not present when claimant Barnett was questioned and resigned, and their testimony was limited to what they knew concerning Carman Kirk's resignation.
Carrier submits that the evidence adduced at the hearing convincingly supports the conclusion that claimant R. G. Barnett did voluntarily terminate his employment relationship with this carrier by written resignation on December 22, 1966, rather than face disciplinary proceedings and possible arrest, and that the allegations made in his affidavit of January 11, 1967, relative to being intimidated and coerced into resigning are unwarranted, unfounded and untrue. Carrier further submits that claimant Barnett and his representatives certainly should have attended the hearing, as they were requested to do, in order that claimant Barnett could have testified and been cross-examined and he and his representatives could have cross-examined the other witnesses. Their reluctance to do so is readily understandable in view of the straightforward and convincing testimony of the various Special Services Officers as to what actually transpired.
In conclusion carrier submits that the accusations made against it in handling of this dispute on the property, as shown by the correspondence attached as its Exhibit "BB", are entirely unfounded and untrue; that the claim as presented to this Board is entirely lacking in merit or agreement support; and that the claim should be denied in its entirety.
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 here.
" This case involves the same parties and the same issues as in Award No. 5743. For reasons stated in that Award we will sustain the instant Claim with remedy to the extent of the penalty, prescribed in Rule 3~ which reads:
The only premise on which Awards 5743 and 5744 were decided was whether the Carrier granted claimants a fair hearing.
The majority held that the discipline rules must be liberally construed and further held that if claimants resignations were brought about by coercion and duress they were then in fact disciplined-dismissed-and thus covered by Rule 34-Discipline.
The majority did not find that the claimant did resign under such conditions, however, the claims were sustained for the reason Carrier failed to conduct a hearing under Rule 34.
The claimants had voluntarily resigned their positions in the presence of witnesses. They had no charge placed against them by the Carrier nor were they disciplined for any reason.
A hearing was granted, as requested, and Carrier advised that the purpose of the hearing was to develop facts in connection with the circumstances under which the claimants resignations were submitted.
In scheduling the hearing, advance notice was given; the hearing was scheduled during regular working hours on a regular work day; an opportunity was given to the organization to attend; bring any witnesses; present any evidence and interrogate Carriers witnesses. A record was made and furnished the Organization. The hearing procedures were the same as those conducted under Rule 34.
We believe that the evidence of record when viewed must favorably for the claimants does not support the conclusions of the majority and an unreasonable Award is imposed upon the Carrier.