Form 1 NATIONAL RAILROAD ADJTJSTMENT BOARD Award No, 8076
SECOND DIVISION Docket No, 7987
2-BNZ-Ew-t79
The Second Division consisted of the regular members and in
addition Referee George S. Roukis when award was rendered,
( System Federation No.
7,
Railway Employes'
( Department, A, F. of L. - C. I. 0.
Parties to Dispute: ( (Electrical Workers)
(
( Burlington Northern Inc.
Dispute: Claim of Enployes:
1. That in violation of the current working agreement, traveling
Electrician R. C. Frey, headquartered at Havre, Montana,, was
unjustly suspended from the sert~ iee of Burlington Northern Inc.,
from Augu.:ct 29s 1977 to September 'l, 1977, in.-chasive, in addition
to having an entry of censure unjustly made on his personal
record,
2, That accordingly, Burlington Northern Tr_c., be ordered to remove
the entry of censure made on the record of Mr. Frey and compensate
him for all time lost, restore any lost vacation time, railroad
retirement benefits, holidays, sick days or hospitalization benefits
and any other rights privileges or benefits to which he may be
entitled under schedules, agreements or laws.
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 emploYa within the meaning of the
Railway Labor Act as approved June 21, 1g3~.
This Division of the Adjustment Board has jurisdiction over the dispute
involved herein.
Parties to said dispute waived right of appearance at hearing thereon.
This Board has carefully reviewed claimant's procedural arguments
regarding the course of conduct of the August 3, 1977 investigative hearing,
which led to the ten (10) days suspension and entry of censure penalty.
While we agree that an explicit finding of carrier manifested bias
would create reversible error, we do not find this condition present.
The record does not show that the hearing officer was prejudicial,
despite his~multiple roles in this case. He did not serve as a witness at
the hearing which investigated this incident or visibly act in an impermissible
manner.
Form l Award No.
8076
Page 2 Docket No.
7987
2-BNI-Ew-
t
79
We recognize the litany of cases on this procedural question and agree
that at tunes, we reversed carrier disciplinary determination for improper
observance of due process requirements, but this is not the situation here.
Claimant was afforded an investigative hearing that comported with the
essentials of administrative due process. The same is true regarding his
assertion that the notice of Hearing was defective. Admittedly, it is
important for the defending party to be apprised of the profexred charges, but
the notice in this instance was not ambiguous or unintelligible to preclude
the preparation of an adequate and sound defense. Claimant was under a
procedural obligation to protest the omission of specific data in the notice
at the time of the proceeding or perhaps more importantly at the time he
was first notified of the investigative action. His post hearing averments
do not cure this -maiver.
Claimant acknowledged that he violated Carrier Rules
665
and
667
and
the investigative transcript confirms this admission. The record shows
that he eras fully aware of the electrical trouble on Train No.
8
and that
he was instructed to meet this train at Whitefish I~_ontana on July 28,
1977.
It was singularity' his responsibility to comply with this directive that
morning and the fact that he didn't because, he overslept cannot be attributed
to carrier's fault.
The imposed penalty was neither arbitrary or capricious, under the
precise circumstances of this dispute, or an abuse of managerial discretion.
We will reject the claim,
A WAR D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest: Executive Secretary
National Railroad Adjustment Board
By.
; ~~/ ~ / _
os xie Branch - Administrative Assistant
Dated at Chicago, Illinois, this 5th day of September,
1979.