(Advance copy. The usual printed copies will be sent later.)
Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 6393
SECOND DIVISION Docket No. 6198
2-SLSW-CM-' 72
The Second Division consisted of the regular members and in
addition Referee Irving R. Shapiro when ayrard eras rendered.
( System Federation No. 45, Railway Employes'
( Department, A. F. of L. - C. I. 0.
Parties to Dispute: ( (Carmen)
( St. Louis Southwestern Railway Company
Dispute: Claim of EmRloyes:
1. That under the current agreement Carman Welder Robert Gould, Jr.,
Pine Bluff, Arkansas, was unjustly dismissed from service effective
October 29, 1970.
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2. That accordingly the Carrier be ordered to restore Carman Welder
Robert Gould, Jr., to service with seniority and vacation rights
unimpaired.
3. That the Carrier be ordered to reimburse Carman Welder Robert
Gould, Jr. for all time lost subsequent to October 29, 1970, until'
returned to service.
4. That the Carrier be ordered topay his Hospital and Surgical and
Medical Benefit and Life Insurance Premiums to which he was
entitled under a negotiated Agreement, for all time that he is
held out of service.
S. That in addition to monetary amounts claimed, he be allowed an
additional amount of 6% per annum compounded annually on the
anniversary date of the 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.
Parties to said-dispute waived right of appearance at hearing thereon.
Form 1 Award No. 6393
Page 2 Docket No.16198.
2SISW-CM-72
Early in its processing of this claim
on
the property, Petitioner
charged non-complianee by the Carrier with the requirements of Article V,
Section (a) of the National Agreement of August 21, 1954, and that therefore ,_r_r
the claim should be allowed as presented. This was and continues to be
based upon the failure of the Carrier official with whom the grievance was
initiated to specify a reason for his denial thereof.
The Carrier, in turn, moves for dismissal of the claim on the ground
that it was the Petitioner which failed to fulfill the obligations of the
controlling agreement between the parties as well as facets of Article V
(a) and (b) of the National Agreement.
A careful review of the record discloses the following
Claimant was given due notice that a formal investigation would
take place with reference to his alleged improper conduct on August 20,
1970. A hearing was conducted by the Senior Car Foreman, duly designated
for such by the Carrier. A stenograrhic report of the investigation was
taken and copies thereof submitted to claimant and his Organization. On
October 21, 1970, the Master Mechanic rendered a decision, in writing, dis
missing claimant from Carrier's service and setting forth the reasons therefor.
Approximately thirty days thereafter, the Local Chairman of claimant
nization applied to the Senior Car Foreman for reinstatement
of
the claimant.
The Senior Car Foreman is a lower Carrier official than the Master Mechanic
who determined the penalty to be imposed upon claimant. The Senior Car
Foreman rejected the grievance without specifying the ground therefore. The
Petitioner then undertook to appeal the discharge to higher Carrier officers,
citing this alleged procedural defect as its basis for seeking a reversal
of the decision of the Master Mechanic.
Rule 22-1 of the controlling agreement specifies the manner in
which a grievance shall be processed. Said Rule has been in agreements
long predating the National Agreement of August 21, 1954. It is axiomatic
that Article V of the National Agreement provided a means of improving
grievance handling and was not intended to be a substitute for existing
contract provisions dealing therewith. Its purpose was to expedite the
process and avoid undue delays by either of the parties in moving claims for
wardsto a proper conclusion. Although there was nothing improper in the
application by the Local Chairman to the Senior Car Foreman for a review
and an endeavor to have him seek reconsideration of the decision of his
superior, this was not an appropriate appeal in accordance with the terms of
Rule 22-1. The Senior Car Foreman was therefore not subject to meet any
requirements of Article V of the 1954 National Agreement. The notice of
termination, issued by the Master Mechanic, afforded sufficient explanation
of the grounds for his decision. Claimant and Petitioner could not be in
any doubt thereof ani could not allege inability to appeal for lack of knowl
adgethe primary basis for the requirements of Article V. By applying to
the Senior Car Foreman, the Organization took an unnecessary and useless step.
Not too long after the August 21, 1954 National Agreement, we laid down the
f
t
Form 1 ' - Award No. 6393
Page 3 Docket No. 6198
2-SLSW=01-' 72
the concept applicable hereto in Award 3280 (Carey) as follows:
"As noted, the charge, hearing and discipline of
Eggert were handled by the Master Mechanic, who is an
officer superior to the Round House foreman. In that
procedure the carrier by-passed the Round House Foreman
and thereby in effect waived its contractual requirement
that this claim be initially presented to him. Under
the circumstances, submission to the Round House foreman
of the claim for reinstatement and payment for time lost,
would have been an idle and useless act and was unnecessary.
Since the Master Mechanic discharged Eggert, the proper
step for seeking relief from the carrier's action was to
appeal to the District Master Mechanic which was done by
the claimant within the required time. We think the
claimant satisfied the purpose and intent of Article V . ...
In Third Division Award 9492 (Rose), a further significant guideline was enunciated in the following manner:
"While we are reluctant to reach a decision on
the basis of procedural defects rather than on the
merits of a claim, we are bound to such a result, when
as here, the parties, by the language of their agreement, have made compliance with procedural requirements
mandatory . ..."
In the instant matter, the record establishes that appeal from the
October 29, 1970 decision of the Master Mechanic was not taken to the higher
official "designated to handle such matters" until April 5, 1971, a period
exceeding five months after claimant and his organization were duly noticed
with the intent and purpose of Article V (a) of the 1954 National Agreement
and the terms of Rule 22-1 of the controlling agreement.
Our
careful review
of Awards cited in behalf of the Petitioner reveals that in none of them was
there cited a provision such as we find in Rule 22-1 of the controlling
agreement between the parties hereto. In said Rule, waiver or presentation
of grievances and claims to lower echelon, carrier officials when appeals are i
taken from a higher carrier official's decision, following a hearing at which
a stenographic record is taken, is set forth.
The stress of the submissions was on procedural defects charged by
both parties. As indicated above, we are generally loath to determine dispute!
on such grounds, but it is our statutory obligation to do so when such is
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properly placed before us. Our function is to enable parties to secure com
pliance with the terms they duly negotiated, agreed upon and codified.
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Form 1 Award No. 6393
page 4 Docket No. 6198
2-,:SLSW4V=" 72
Claimant and Petitioner's processing of this claim eras not in accord with the
controlling agreements and cannot be considered on the merits. a
AWARD
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Claim dismissed.
NATIONAL RAILROAD ADSUSTIWENT BOARD
By Order of Second Division
Attest:,
Executive Secretary j
Dated at Chicago, Illinois, this 31st day of October, 1972.
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