Form 1 NATIONAL RAILROAD ADJLTST:'l~i~T 30ARD Award :;o. E591
 SECOND DIVISION Docket No. 61126
 2-SCL-FO-'73



Parties to Dispute: (Firemen -& Oilers)
 (
 ( Seaboard Coast Line Railroad Company

 Dispute: Claia-n of Employes:







Findings:
The Second Division of the Adjustment Board, aeon the whole record and all the evidence, finds that:

 The carrier or carriers and the emplo;;·e or employes involved in this dispute are respectively carrier and employe within the meaning of the Rail:.ray Labor Act as approved June 21, 1934.

 This Division of the Adjustment Board has jurisdiction over the dispute involved herein.

Claimant, a Laborer and Inside Hostler's Helper under the Firemen & Oilers Agreement, was utilized briefly on the date in question to perform Oulsid.e 1-iostler's work. While working outside his assigned li.-nits his engine derailed.

 On the day of the derailment, Carrier, without knowledge of the Organizaticn
 received a statement from Clairaant admitting responsibility, electing not to rave an
 investigation, and. ex.-P his willi:z~ness to accept Carrier's discipline. It is
 apparent that the "confession" was prepared by Carrier.

 The Organization contends that Carrier violated the discipline rule (Pule 28) in that Claimant a:as deprived of the opportunity to be relrcsented becu.use! :1o notice was given to the Organiza.ticn until after the discipline was assessed..

















z Per son,'-a! )-. 7~!e pli_fent ^.T" these r_~_°S~ T.Thnn tan 4.~.7~tr=.~,i7.~_ r`r':y i.~Vroc~
 presents his o·rm grievance or case personally, is to require that
 the duly authorized committee or its accredited. representative, be
 permitted. to be a 'Darts- to al -I conferences,, hearings or ne;otiati ons,
 between the aggrieved or accused. employee and the representatives
 of the carrier."
 There are at-mrd- from various Divisions that hold. that an employee -lay
 waive any rig:n_t to whatever procedural safeguards are available to b:11m under the
 schedule agreement. See First Division Awards 11498, 14042, 3_7152, 15509 and Third
 Division Awards 929, 2339 and 18468,
 Other awards hold that a Carrier does not rave the right to avoid. a
 contractual obligation with an organization by entering into agreements with
 individual employees resulting in a T-aiver of procedural rights or other benefits. See
 Second Division Awards 1265 and. 4096;
 To hold that an employee cannot, under any ci cumstance, confess error and
 ·,~aive his rights to whatever procedural safeguards to which he is entitled results in
 absurdity. It is equally erroneous, however, to hold that' the employee's representa
 tive under the collective bargaining agreement is not, tinder the language of Pule 28.,
 entitled to be given notice pricr to any action that right be taken bar Carrier. It
 is clear that the notice requirements were intenled to provide the organization with
 an opportunity to assist its members.
 Form 1 Award r;o. 6591
 Page 3 Docket No. 6426
 2-SCL-FO-'73
 It follo~,rs that after such notice is giver. to the Organization; an Employee
 is free to pursue whatever course he wishes.



        Claim is sustained.


                              NATIOITAL RAILROAD ADJUSTI~4Fi,T;T BOARD

                              By Order of Second Division


Attest: Executive Secretary
 ;Jaticnal Railroad Adjustment Board

                f


By _

      i osemarie Breasch - ;.6.-,.-jinistrative Assistant


      Dated atChicago, Illinois, --h;s 15th day of November' 1973.

DISSENT OF CAFZRIIM MDMERa

TO

AWARD F0. 6591, Does xo. 6426

(R=,ZMMS )


    Award 6591 is not supported by law, by the Agreement, or by precedent awards of the Rational Railroad Adjustment Board.


    There sms no dispute that claimant was working as outside hostler helper at the tire of the occurrence for which he admitted responsibility and accepted discipline.


          The Carrier's contention that the Second Division was without

    jurisdiction to decide the dispute was based upon the clear and un

    ambiguous language of Section 3, First (h) of the Railway Labor Act

    'conferring jurisdiction over dispuves involvirz outside hostler helpers

    to the First Division. The valid contention of tee Carrier in this

    respect was simply brushed aside by the Referee with the terse statement

    that "we find it is iii shout merit" with no exolanc Lion t.hatsoever.

    Issues of this nature deserve more than such off'-hand treatment.


    auk a id is c vu0""i aic-toi 1.F`1 1 v$Eli . l V u4avlds fw-la right of eon individual to waive whatever procedural safeguards to which he may be entitled in disciplinary proceedings, which certainly includes notice, but at the same tine holds that the vnployes' representative must be given notice. Such reasouin3 is absurd oz its face. The representative is not the one who imy be disciplined.


    There is absolutely no basis for the atvarding of compensation. Rule 28 of the applicable agreement provides in part:


. "If it is found that an cmployce has been un~ustly
        suspended or dismissed from the service, such employe

        shall be reinstated with his seniority rights unimpaired

        and compensated for the vm"es lost, if any, resulting

        from said suspension or dismissal."


    Claimant having accepted responsibility for the derailment, it follows that he was not "unjustly suspended or dismissed."


    For the reasons stated, Award 6591 is in palpable error, and, we dissent.


                              0

      AWARD ho. 6591

      DOCKET ho. 426


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