Form 1 NATIc NAL RAILROAD ADJUSTMENT BOARD Award No.
7+52
SECOND DIVISION Docket No.
7267-I
2-B&M-I-'78
The Second Division consisted of the regular members and in
addition Referee Walter C. Wallace when award was rendered.
( Hubert P. Brennan
(
Parties to Dispute:
( Boston and Maine Corporation, Debtor
Dispute: Claim of Employes:
While employed as a Cayman at Lawrence, Massachusetts on
January
29, 1976
I was charged with improper performance of duty.
I was not properly informed of the charges against me, I was
denied a fair hearing and I did my work properly and in accordance
with the rules.
Finding s:
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 ,Tune <''l,
1'934.
This Division of the Adjustment Board has jurisdiction over the dispute
involved herein.
Parties to said dispute waived right of appearance at hearing thereon.
As a result of a situation which developed in Carrier's Lawrence, Mass.,
Yard on January
29, 1976,
wherein a Federal Inspector shopped twenty
(20)
cars in a train scheduled to depart from that yard after claimant car inspector
had supposedly inspected the train, claimant was notified to attend a hearing:
"-xx-x to develop the facts and place your responsibility,
if any, in connection with the charge (incident) outlined below. Your improper performance of Car
Inspector duties at Lawrence Yard during your tour of
duty on Thursday, January
29, 1g76."
At the hearing, claimant acknowledged that he had received the notice of
hearing and that he elected to represent himself during the proceeding. The
General Chairman and Local Chairman of the Carmen's Organization were permitted
to remain during the hearing, but as stated in the hearing record by claimant:
V
Form 1 Award No.
7+52
Page 2 Docket No.
7267-I
2-B&M-I-'78
"Mr. Hardy and Mr. .Tones are here as observers. I
represent myself sir."
As a result of the evidence developed at the hearing, claimant was
restricted from working as a Car Inspector "at other than locations where
direct car department supervision is available."
Throughout the appeal processes on the property and in listing the appeal
with our Board, claimant has alleged that:
1. He was not properly informed of the charges;
2. He was. denied a fair hearing; and
3.
He properly performed his duties on the dates in question.
In his ex parte submission to this Board, claimant injects, for the
first time, a request for "reimbursement for all costs, expenses and financial
losses suffered***" including reimbursement of "legal fees of Seven Hundred
and Fifty Dollars
($750.00)."
From the record the Board notes that claimant appeared at the hearing
as instructed, acknowledged receipt of the hearing notice and, at no time
during the entire proceeding, indicated in any manner that he had not been
properly informed of the charges or that he was unaware of the reason for
the hearing. In fact, he proceeded with considerable aplomb to pursue his
own defense and offer his own testimony. It is a well defined and accepted
maxim that the parties to a dispute may not participate in a proceeding without
raising any objection and then after the proceeding is concluded be heard to
complain relative to the propriety of the proceeding. See Second Division
Award Nos.
7153
(Sickles),
7009
(O'Brien),
6373
(Bergman),
5360
(Knox),
50+2
(Johnson). This case is no different. Claimant was properly informed of
the charges.
As to the contention that he was denied a fair hearing, that too has no
merit because claimant himself answered "yes" in the hearing record to the
question "Has
this investigation been conducted in a fair and impartial manner
in accordance with your scheduled requirements?" He
cannot now
contend that
it was not fair. See Second Division Award Nos.
6188
(Dugan),
600+
(Gilden),
ZI-035
(Johnson), and
387+
(Anrod).
Regarding the contention that claimant had properly performed his duties,
we have again looked to the record and can find no basis on which to reach
such a conclusion. Despite claimant's evasive and sometimes contradictory
answers, it is abundantly clear from the testimony that he failed in his
responsibility to properly inspect the train in question. The finding of
twenty (20) defective cars - most with obvious, clearly discernable defects -
by the Federal Inspector in a train which claimant had allegedly inspected
and made ready for road movement does not indicate a proper performance of
duty by a qualified Car Inspector.
Form 1
Pag e3
Award No. 7+52
Docket No. 7267-I
2-B&M-I-'78
The restriction that claimant work at a location where direct supervision
is available was not arbitrary, capricious or excessive in light of the proven
dereliction. The claim as listed with this Board is, therefore, denied.
Because the monetary claim was neither part of the claim as handled on
the property nor included in the subject as listed with our Board, it is
dismissed. Also, because the claim for reimbursement for legal fees was
neither part of the claim on the property nor included in the subject as
listed with our Board nor is it provided for in any Rule of the Agreement,
it is dismissed.
A W A R D
Claim disposed of in accordance with the findings.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest: Executive Secretary
National Railroad Adjustment Board
By ~, i, ~: _ .. y
o emarie Brasch - Administrative Assistant
Dated a (Chicago, Illinois, this 31st day of January, 1978.
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