Form 1 MTIONAL RAILROAD ADJUSTMENT BOARD Award No. 6738
SECOND DIVISION Docket No. 6435
2 REA-MA-'74

The Second Division consisted of the regular members and in addition Referee Nicholas H. Zumas when award was rendered.

:'International Association of Machinists and Aerospace Workers Parties to Dispute:

( REA Excess. Inc.

Dispute: Claim of Employes:

1. That under the controller agreement mechanic L. P. Smerk was unjustly dismissed on October 25, 19"tl, effective October 22, 1971, without the benefit of an investigation.

2. That accordingly the Company be ordered to:

a. Restore mechanic L. P. Smerk to service with seniority unimpaired, ands

b. Compensate mechanic L. P. fterk'for all time he has been withheld from service, subsequent to October 22, 19'rl.

Findings:

.

The Second Division of the Adjustment Hoard, upon the whole record and ell the evidence, finds that:

The carrier or carriers and the employs or employes involved in this dispute are respectively carrier and employs within the meaning of the Railway Labor Act as approved Joe 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 there OR1.

The initial question to be~determined in thi& dispute is whether claimant was afforded as investigation in conformity with the requirements of Rule 35 of the schedule agreement. The pertinent fact relative to this preliminary inquiry is not in dispute: Claimant was assigned as Mechanic on the second shift at the Cleveland garage on October 22, 1971. He reported for work and clocked in. Several minutes later he clocked out and left the garage. On October 25, 1971 Claimant received a letter Pram the Fleet Maintenance Supervisor stating in part:
Form 1 Award No. 6738
Page 2 Docket No. 6435
2-REA-MA-''74
"My Supervisory Mr. DeFlorioj looked for you to assign
murk but could not find you and since you walked off the
3ob,without permission, we can only assume that you quit
and we accept your resignation.
As of this date, October 22, 1971, your~employment with
FLEA is terminated.'

By letter dated October 27,p 1971 Claimant requested a hearing under
Rule 35. By telegram of the same date, Carrier notified Claimant that
Ilan investigation and hearing of your grievance will be held on
October 29j, 1971 at 10:00 a.m." This telegram was in apparent response
to, ,Claimant's 7e tter.

Rule 35, the Discipline-Investigation rules provides in pertinent part as follows:

"(a) An employe shall not be dismissed for incompetence

nor shall such employs be disciplined or dismissed without

first being given a fair and im artial investigation by an

official of the Company. .~ erscoring added).

` Carrier's position may be summarized as follows: (1) Claimant was
not dismissed on October 25; Claimant was subsequently dismissed after ._,~v

the investigation and hearing of October 29; and (2) even if the

October 25 notice was improper the October 27 notice was valid in

every respects asserting that this Hoard has ruled that an initial

improper investigation does not nullify the result of as identical

second investigation that was proper. (Citing Second Division Award

Ro. 5987)·

The Hoard finds that Claimant was not afforded an investigation in conformity with Rule 35. Despite Carrier's assertions to the contrary, Claimant was terminated as of October 22, 1971 as stated in

'the Supervisor's letter of October 25. This was is clear contravention of the rule.

Carrier's reliance on Award No. 5987 is misplaced. The factual circumstance in Award. 5987 is readily distinguishable and has no application is the instant dispute.

AWARD

Claim is sustained.

~,

Form 1 Award No. 6738

Page 3 Docket No. 6.35

2 REA-MA-' 7+

NATIOML RAILROAD ADJUSTNEVT BOARD

By Order of Second Division

Attest: Executive Secretary

National Railroad Adjustment Board

By c~t.t ~ ~t.o~__~ ~.

osemarie Braschinistrative Assistant

Dated at Chicago, Illinois, this 18th day of July, 1974.

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