The Second Division consisted of the regular members and in
addition Referee John J. McGovern when award was rendered.
PETITIONER'S STATEMENT OF FACTS: On July 10, 1969 Frank Desiderio, the employe on the job in the Elgin, Joliet and Eastern Railway Company car shop, was injured. Immediately thereafter a written accident report was completed and signed by the employe.
On September 29, 1969 the employer, by written letter, ordered the employe to appear at the claims agent's office for purposes of giving a recorded interview.
The employe had at this time retained counsel to represent him and was advised by counsel that the tape recording of a person's statements without their explicit consent was a crime in Illinois and refused, orally, to attend said meeting.
On October 13, 1969 the employe received another notice of a formal investigation to be held by the employer.
That in compliance with the aforesaid notice of October 13, 1969 the employe attended said claims agent's meeting and a partial hearing was had on October 21, 1969. It will be noted therein that the employe advised the employer at that time that he felt it was a violation of the Illinois law to require such a statement and that he had complied with Rule 44 which required him to file an accident report.
On December 15, 1969 the employe filed an action under the Federal Employes' Liability Act in the First Municipal District of the Circuit Court of Cook County, case no. 69M1 3,07881, and on or about January 8, 1970 the employer, through counsel, filed their appearance and answer in said cause.
Because of the reasons outlined above, the carrier respectfully requests a dismissal or a denial award.
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.
Since the record shows conclusively that this claim was not handled on the property by the Claimant or his representative in accordance with the provisions of Article V of the August 21, 1954 Agreement, and since no conference relative to this claim was held on the property prior to it being submitted to this Board, we have no alternative other than to dismiss it on these procedural grounds.