Form 1 NATIONAL RAILROAD ADJUSTN[ETTT BOARD Award No.
6'921
SECOND DIVISION Docket No.
6808
2-C&NW-CM-' 75
The Second Div-.sion consisted of the regular members and in
addition Referee Harold M. Weston when award was rendered.
( System Federation No. 12 Railway Employes'
( Department A.F.L.-C.I.O. - Carmen
Parties to Dispute:
( Chicago and North Western .Transportation Company
Dispute: Claim of Employes:
1. That under the current agreement the Carrier unjustly dismissed
Car Inspector George White from service on November
23, 1973.
2. That the Carrier erroneously charged Mr. White with violation
of Rule
9
of the General Rules of the Chicago and North Western
Transportation Company, unauthorized possession of merchandise.
3.
That accordingly the Carrier be ordered to reinstate Mr. White
to service with seniority rights unimpaired, compensate him
for all time lost, and that he be made whole for vacation and
health and welfare benefits.
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.
Claimant was notified by letter of October
15, 1973,
to appear on
October
18, 1973,
for hearing on charges of having unauthorized possession
of merchandise entrusted in Carrier's care. The hearing was rescheduled
for October
30, 1973,
at the Local Chaizman's request and was held on that
date without Claimant or his representative being in attendance.
Petitioner points out that the Local Chairman had sent a letter to
Carrier on Saturday, October 27,
1973,
by registered mail, requesting -further postponement of the hearing until after December 12,
1973,
when
a court case involving the same charge might be concluded. The Post Office
receipt shows that the letter was not delivered until October
31, 1973.
Form 1 Award No.
6921
Page 2 Docket
T`To.
6808
2-C&1Za-CM-' 75
That Claimant and his representative received due notice that the
hearing was scheduled for October 30, 1973, is undisputed. This is not
a situation where he was not given adequate time to prepare for hearing or
where there was some question as to whether he actually received notice
of hearing or where the notice was ambiguous (cf. Second Division Award
5973 where some of these questions did exist). Under these circumstances,
it was Claimant's obligation to make certain that the hearing would be
postponed and lie could not rely on a letter sent during the weekend to
postpone a hearing that he knew was scheduled for the following Tuesday.
When he chose not to appear at the hearing without having been advised that
it had been postponed, he did so at his peril (see Second Division Award
5987 and S.B.A. 235 Award 1685). The mere fact that a request for postponement had been made did not mean that it had been granted.
There is no evidence that Claimant's failure to attend the hearing
or to contact Carrier by telephone or any other means to ascertain the
status of his request was due to an emergency situation or any fault of
Carrier. In this setting, it was not improper for Carrier to proceed
to hold the hearing despite Claimant's absence.
At the hearing, Carrier's Lieutenant of Police testified in considerable detail that he observed Claimant and another employe, Anthony
Lazzaro, carrying cartons of merchandise from a railroad car to the
parking lot and then placing them in the trunk of Lazzaro's automobile.
His statement was corroborated in material particulars by the testimony
of Special Agent Badell and by a written statement of Mr. Lazzaro. Both
Claimant and Lazzaro pleaded guilty to a reduced charge of a misdemeanor
when they appeared before the Cook County Criminal Court to answer criminal
charges regarding the incident.
In the light of this record, we find no valid basis for setting aside
Carrier's findings of fact and assessment of discipline.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest: Executive Secretary
National Railroad Adjustment Board
By a'.~!~2_Cz/i~- 'C~
Rosemarie Brasch - Admin::.strative Ass~btant
Dated at Chicago, Illinois, this 26th day of August, 1975.