Form 1 NATTOXI~.L RAILROAD ADJUSTi,52dT BOARD Award No.
7574
SECOND DIVISION Docket No.
7462
2-SLSW-CM-'
78
The Second Division consisted of the regular members and in
addition Referee Walter C . Wallace when award was rendered.
( System Federation No.
45,
Railway Employes'
( Department, A. F . of L. - C . I:. 0.
Parties to Dispute: ( (Cafmen)
( St. houis Southwestern Railway Company
Dispute: Claim of Fmnloyes:
1. That Carmen Ivielvin GeiF;;ar and F. L. Cook were unjustly withheld
from service beginning October
6, 1975,
and were subsequently
unjustly dimirsed
from
service without a fair and trpart:!.al
hearing by ,he St. Louis Southwestern 1?a~1Tra;~ Co?;-paz r o:~z January
14, 1976,
in violation of rules of the controlling agree?cent.
2. That the St. Louis Southwestern Railway Company be ordered to
restore
Cannon
Melvin G=i .Ear and E. L. Cook to service, made
whole '?n ever- reopect, including; ,seniority a%d vacation rights
unimpaired, all health and welfare - _. ~ i s
u `c isE:
bts,
peray mid . '1iW'.t benefits,
pension benefits, inccliidin `;
`:3.1.~.~'_'o:;,d_
Retirement and une!lipaoY-:en't
and sickness insurance, a:,nd all lost z-,ages.
F z nd-i_ ng; s
The Second Division of the Adjustment Board, upon the whole record and
all the evidence,
finds
that:
The carrier or carriers, and the enrE)loye or employes involved in this
dispute are respectively carrier ind employ e 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.
Claimants were both Carmen of the St. Louis Southwestern Railway at
fine Bluff, Arkansas prior to their discharge. The events living
Vi
se to
this dispute connenced on or abant October
C, 1.975,
iorhcn Claimants were
both removed iron se'f'vice rending a hea:~.r.because
of
tlicir alleged
involvement in the tl.,`_:'t of. tire. from a. z'e~ ht car in transi=t E.t ,'irt~
Bluff on October 5, 1975. CaVr:i.e.r schectu'led. L':~e hearing for Noveribe.r 12,
1975
by letter dated October 22,
1975.
On hovc:.;iben 10,
1975,
the Ocneral
Chairman, t
.1_.lie
r,
, rv ~ ~ ; for
postponement ~ 'e<y~.7.~t of one of t~.c ~'la.:im: ;~.Yus, asked o.~
.~
the hearing to a nriut1?.al :Ly aE;r eea b?_e date becz-uoo of the fact tt,.at t"lie
Claimant
7'i-as'
','cheailed to appea,r :-rz c cian_9
·'~>,a.
count for the ~;:zar~e matter on
Form 1 Awaod No. 7 574
Page 2 Docket; No. 7462
2-SLSW-CM-' 78
November 12,
1975.
Carrier agreed to this postponement. Ther'eaf`ter, by
letter dated December
29, 1975,
Carrier rescheduled the hearing for Jan;,nry
7, 1976
and, after the conclusion of the hearin, by letter dated ianuar-Y
14, 7..976,
Carrier' officer notified Claimants of their dismissal from
service as a result of the evidence developed during the hearing.
Procedurally, the employes contend that Carrier violated the provisions
of the controlling agreement, and particularly Rule
24 - 1,
when it remo,=cci.
the claimants from service and thereafter failed to promptly hold a hearing
as the rule so stipulates. Award 65';.1. between the same parties, is cited
for support. Carrier defends its position regarding this issue on the
basis that the hearing was not scheduled until November 12,
1975
because
both of Clai_lrants' accuser's, the Railuny's Special Agents, could not be
present until ti:-at W ate, and. that this was the banis for the further
postponement until jannary
7, 1976.
Carrier ihrv,
er-
points to the fact:
that the hearing originally
W,._,,
scheduled for Novelrber 1?, ~.nd postponed
~:'trxG~ ~
the Claimant's request ;;o that it r;ould not conflict with his court appet_rance
on the same offense.
In discussing this procedural issue, we first of all highlight that
the charges aga:ira.>r both enxl'icy~-cs were serious. Under
a
host o:i.' p?wcvcu
decisions from this Board rccognizinq the difference betwoen criminal
proceedings and internal, r~:!1road disciplinary proceedings, the twu matter,-here were separate proceedings Fin:. the Gu'C.COI''e of One.'
h123y
not nece,ssarll_
affect the outcone of the other. ieveirtheles, Carrier favored Claimant's
~;
reqye st for a postponm!ent of the disciplinary Hering
so
that he could.
appear at the court to defend himself nc;ainst crlin~i_nal charges. Carrier
certainly cannot be faulted for this favor it extended to ClaKnrt.
Secondly, we have revs evTed the findings of hvard
65'+l , cited
by the
Organization for support of their position. There, we found that a delay
of 16 days to the date of hearing and a delay of an additional 13 days for
rendering the decision was, under the circumstances, excessive. In that
case, however, Carrier merely assessed the employe i;-) demerits as a result
of its conclusions following the hearing and permitted him to return 'to woh.
as soon
2.s
it rendered its decision. As
we
said,
we found there that
"under all the K~ rye
R
-tihcf,s
of thi~s_ c_^s_e, (underscoring ours) . . . the
29 days suspension in
'.1act
.. exceeded the lim:;_ts of promptness ..."
We do not quarrel with the findin;s
of
that decision as it applied
to the facts and ci rcu2ustances therein. 11iere, ho*xrever, the Claimants were
L .L
charged with one Of: the f..".Cost serious,
7i'
not the most serious, offense -
an offense, which, 1'i
,ja1'OVan,
nOInally results in 02charge. Thus, it nos
imperative that they have the right to face both of their accusers, the
hallway's Special Agents, at the same time, t0 proscrve every possible vinht
of daze process
which
they VZht have under the agreement.
Form 1 Avard No. 7574
:Page
3
Docket No.
7462
2-SLSW-CM-'
78
We also find that Rule 24-4 of the agreement between the parties
protects Claimants' HER Eht thoroughly in the event their suspension or
discharge is found to be unjust:
"If it is found that an cznployee has been unjustly
suspended or di. smis sed from the service such employee
shall be reinstated with his seniority right L1nyr:Ta.ired,
a.nd co?~r~ens~.tL_-.d. for _t ''ie v~v7e los: , if ~ a_,n,- _ r es_ul ti_za;
from
said
suspension tar iim11suul.'(Undefiscorin, ours)
We conclude that these two factors discussed, supra, preserved
Claimants' procedural and substantive rights under the contract and insured
that they received. a fair and linaantial hear:iLn,,; Claimant, himself,
consented to the
postponement
by reqnesting that the hearin; be rescheculed
to a, naitually agreeable c=?-~te so that he could. appear :i n Court to ansTer to
criminal charges. In Ti~.l.rd Division Award 1'~_L'(, this Board held:
"Therefore, the question to be resolved is whether
Cl~j-iinant and Carrier rz:atually ai-reed to the post
po:2ervent of the investigation thereby waiving the
ten (10 ) d a:y x'eqn: i_r enent
or
Rule
63(a) .
We ' '~ Y the two parties did -rztually agree to waive
c
find : that RRule 63(a) . Tn Car r
ie12'
s letter of' July
1c),
Cla-.m,~ant
was apr)'7..s'c'CL Of the Y~OstpC)1.1e::::,'n' c,Il~a the reason
theYefor e. Claimant is prer'J_ned to
ha1Gw
the provisions
of the Agreement as well a.:; the Carrier. If postponement
of ., 't11e investigation would hwe been prejudicial to
Claimant or unduly penalized M.-n, Clo.1a_.nt ha.d z:._~P7..e time
to object to the postponcr:_ent. If he had objected.., then
obviously there would have been no mutual
agreement
Q
wwaive gale
63(a) as
it peg"tams to the ten (10) day
requirement.
Ho,,-,,ever, Claimant's failure to object to the, postponement
would lead a, reasonable man to believe that Cla inant
agreed to the postponement. Therefore, the provisions of
Rule
63 (a) as
regards the: ten (10) day limit are wawed.
Furthext.o~-e,
we
can find no arbitrary or capricious action
by the Carrier with r'VSpect to -the investigation. that 'would
warrant this P.oard to overt
-Li
rn the fin.ain`;s of Vhe
investigation raw the penalties imposed against Clair:ant."
These findings were followed by Third Division !ward
18523.
In Third Division Award
18536, we
held.:
Fonn 1 Award No. 7574
Page
4
Docket No. 7462
2-SI,SW-CM-'
78
"Carrier, furthermore, had the right to hold Claimant out
of service pending completion of the investigation, since
g t disloyalty,
the alleged of'f'er:>e was an, act of xosses which, z.f proven, vrould justify Cle,_r,.a,.r.L' t's dismissal, as
well as being a Federal c;ri?-^c. Cl_.,_'!_.?;`c_;;Ta___,r)x'c~'i.~;C:`i_ed,
r ·,r
?~7l_e ~. ~'1-dch
_^L'_.~.a__C>:T=_j_ _-i'or
h.::
-w_I
ns'ta..te
rnent w-ith
rf'.~,r
:;'c,~_-~t'~ me_.10 _ _` .~-1
V
be -,_r' _.s - t
.-i,;zi, cf_,^_~'_,_,-
:,;~,~,ci
of
the
C._,,_.
, Con _ - __ ~_fl},_i,.~_.r-U t:,
Z.'.-- vJG d;'I%I':_1r-~:C.t
oi'
P.r',Mct,'.:_]', __,, __ - -_ __.__.. _.
on, y r
LI';tlt'~';rl".Y':'.i·._:(.:;L`11'l:~i ~~'~--·.-i~.e~
~·;~'~:~Ji,~ii
In First
Division
Award 20 163; v~v h.eld:
'The carrier had unquestioned authority to take an employe
f, _
out
of
service in a, serious off'en.=a when a, priYr~a. facie
case of wrongdoing had been establ'!
shed,
pending the
final
determination of the charges. Tile record indiente;, this
. _
was the
C1C.`?,x' :?.:1tt)1`G10I1
of tin carrier. lt appears tU the
Division t0 1)t. ill advised 'Go
u_!_1 O*4
the loose and -1~Aept use,
of the word 's'a~>~pwnded' to trine
the
who=.e invc":t7-"-.'tary
.pr
d 5gs,
e"?"' 'c'i RIQ i'2an ,.__thqre cost L"'.ctu%'
4:
' O
_.fov'1? on
to make whole an _._.. ' i
.ovt.'
won
!_·' t-,
-'t1.
:iUK
of...r_P..cc
We
thus conclude that, tinder the facts
a?).l1
circumstances of this case,,
the hearing s-ms held as p~.'c·,~i:,,;i,l_y as y,ossihle following the Me Claimants
were withheld 'from <.'_nt1 tthat the Cla7natuts wore otheywire stiff iV enrly
withheld
'_~1
service
r
..
apprised of the cl=arse agaa..a.^_.i: the~Tl and rccoive-nG.
a
fair and
Syar'G1a.
_.
hearing.
Turnin<; to the merits, we find more than substantial evidence establ°hAng
Claimants' ;''wilt. 'i'es tmo1X' of
~:x;(.'1E.'.'i
`,.', t':To S;rr):--.c1_al agents was clear
8,'nd
convincing that
they
6uservcd the ~l<~:i_z:.-rats in a tyiick driving to the
locatioil of the freighL car containing the tires, place the tires in the
rear bed of the true!, and then begin ~~to drive off the property. It
1,Tas
at this point that both of them were a.pi,'Y&ended, and we
find
that Cnrxiei'
has made a prina facA a
shOZ1.Yj`-
that Clai:xants were
guilty
as cl:~a.r`;ed.
There remains for us to discuss the approp?"ia:LCness of the discharge
penalty. We have consistently held that an act of theft, in any form,
if proven, justifies the discharge penalty, and
we
adhere to that arLuci.ple
here.
A W A R D
Claims denied..
Form 1
Page
5
Attest: Lxecu*tx.ve Secretary
National F,ailroad Adjustment Board
Award Tdo.
157T+
Docket No.
(462
2-SLSV-CM-'
78
MTTOTIU, RAILROAD A.DJUSTIME1tr BO-LJM
By Order of Second Division
Dated
J
Cr-ui_ca~o, T:T_l_v~.oi.s, tl:Lis 23rd day o-_ June,
l9(S.