The Second Division consisted of the regular members and in
addition Referee Joseph E. Cole when award was rendered.
SYSTEM FEDERATION NO. 16, RAILWAY EMPLOYES'
DEPARTMENT, A. F. of L. - C. I. O. (Carmen)
(1) That under the current working agreement upgraded Carman Kenneth Curtis was discriminated against when he was held out of service prior to the investigation, and, subsequently was unjustly suspended from the service of the Carrier from December 31, 1969 to January 29, 1970, both dates inclusive, at Bellevue Yards, Bellevue, Ohio.
"As a result of the formal investigation held in my Office December 31, 1969, you are hereby assessed a thirty (30) day actual suspension in lieu of dismissal.
supported by testimony given at the investigation and the discipline assessed was commensurate with the act committed.
The Carrier respectfully requests that your Board so find and deny the claim in its entirety.
FINDINGS: The Second Division of the Adjustment Board, upon the whole record and allthe evidence, finds that:
The carrier or carriers and the employe or employers 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 Ajustment Board has jurisdiction over the dispute involved herein.
It is inherent in the employer employ a relationships that the Carrier may hold a person out of service pending the investigation, and that does not violate Rule 33, third paragraph, which says that there shall 1>e no suspension of work by the employer, or a shutdown by the employe. However, if the holding of the employe out of service is wrong, then the carrier must make the employe whole.
A careful review of this file shows that the eS.nior Foreman issued a written order and .a Junoir Foreman attempted to alter that written order with an oral order that did not have the same dignity, nor did it have the same responsibility as the written order.
The conflict in Management orders is the crux of this difficulty and grievance.
Mr. Booth, the Senior Foreman, was the presiding officer at the haring, was a witness, questioned witnesses, and issued the order of suspension. Mr. Booth was the person who issued the written order, regarding the condition of the vehicle in question.
The written order was unambiguous and stated that the vehicle in question was not to be used. Except in cases of extreme emergency, oral orders by a subordinate should not supersede the orders that were written by the senior officer, if those orders are not ambiguous.
Rules 32 and 33 were scrupulously complied with except that the presence of the principals in this matter in the presence of Mr. Booth, made the whole proceedings suspect.
I find that the Claimant was not insubordinate, but was in reality, obeying the orders that he should have obeyed.
Mr. Booth, or any other management employe, who is going to make a decision, should disqualify himself from such a hearing, if he is going to have to issue the order of decision, as in this case. He may, of course, appear as a witness.