Form 1 i.ATIOTTAh R=OAD ADMUSTPZNT BOARD Award No. 8325
SECOND DTTIS IO`T Docket No.
819+
2-ATSLr -EZd-
t
80
The Second Division consisted of the regular members and in
addition Referee Rodney E. Dennis when award was rendered,
( System Federation No,
97,
Railway Employes'
( Department, A. F, of L. - C. I. 0.
Parties to Dispute: ( (Electrical Workers)
(
( Atchison, Topeka and Santa F e Railway Company
Dis rnzte : Claim, of Employes:
(1) That the Carrier erred and violated the contractual rights of Mr.
R. E. Groom by refusing to compensate witnesses at an investigation.
(2) That, therefore, M'..r. Groom be reimbursed an amount of
$467.80.
Findings:
The Second Division of the Adjustment Board, upon the whole record and a3:L
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.
Mr. R. E, Groom, the claimant, is a regularly employed Electronics Technician
in carrier's Coast Line Communications Department, headquartered in Pheonix,
Arizona. He :ryas required to attend a meeting where the ve.ti di ty ox" two time
sheets he had submitted was to be investigated. The meeting was scheduled to
be held in Winslow, Arizona, about 200 miles from the claimant's headquarters.
Since the hearing was being held 200 miles away, the organization requested
that the carrier pay wages and expenses of all witnesses, if it would not, the
organization asked that the carrier hold the hearing at claimant's headquarters.
Carrier refused to set the site of the hearing at 1~heonirx, since all of the
witnesses from 1-Tinslow would then have to travel. This would have 'peen more
inconvenient for a greater number of employees. Holding the hearing i n Ph.eoni.x_
TNou1d interfere with company operations at Winslow. since three employee
witnesses required for the investigation could not be spared frtm the Winslow
Relay Office at the same time.
The meeting was held at Winslow and the clainant reimbursed two witnesses
called by him for lost time and expenses. He is now seeking re-'. reLrbursement from
the carrier for money he allegedly paid to these witnesses. The organization
bases this claim on an alleged violation by carrier of Rule
35
of the
July
I.,
1969
agreement. By requiring the claimant to appear at a hearing 200 miles from
his headquarters and requiring hire to pay expenses for two witnesses necessa,r<~ to
his defense in the investigation, he was denied a fair and impartial hearing.
Form 1
Page
2
Award No.
8325
Docket No.
81 4
9
2
-AT8oSF-EW-'
80
The organization does not contend that Rule
35
requires payment to employee
witnesses when called for a hearing. It does argue that justice and fair play
dictates that the claimant should not have to bear the burden of paying expenses
for witnesses to have them available for his defense at a hearing that may result
in the loss of his job or his being assessed demerits. The organization further
contends that the two witnesses called by the claimant were essential to his
defense and that they should have been called by the carrier if it intended to
comply with the requirement that a fair and impartial investigation into the
matter be held.
While the claimant in this case may have been put in an inconvenient position
as a result of the investigation being held 200 miles from his home and while he
may have had to incur some personal expense to reimburse his witnesses for travel
and time lost, there is no evidence in the record before us to show that this
resulted in a violation of Rule
35,
as written. There is also no indication in
the record to support a finding that the carrier acted in an arbitrary or
capricious manner by establishing the hearing site at Window. In fact, it had
good reason to do so. It minimized the travel that would be required.
The gravamen of this dispute is that no schedule rule has been violated in
this instance by the carrier. Third Division Award No. 21
58
very clearly provides
the Board's position on the necessity for a schedule violation. This Board has
consistently ruled that a provision of the agreement that prohibits the carrier
from taking a course of action must first be cited and that the union must then
demonstrate haw the carrier's course of action violated that provision. Unless
a provision exists that prohibits the carrier from pursuing a course of action,
this Board has no authority to rule against it. No specific rule was violated
by carrier in this case.
The organization argues that Rule
35
does not prohibit carrier from paying
the expenses of employee witnesses at investigations. Therefore, it claims, a
sense of fairness would require that they be paid, This argument cannot prevail.
If the parties had intended that employee witnesses should be reimbursed, they
would have clearly so stated. Absent the language to authorize such payment.
this Board cannot direct a payment, despite the burden that may be pJsa,ced on the
witnesses. To do so would be to write a benefit for the union into the agreement
that is not now there.
Claim denied.
Attest; Executive Secretary
National Railroad Adjustment Board
A W A R D
NATIONAL RAILROAD ADJUSTMT BOARD
By Order of Second Division
B;4aiemariMrTs~ch- ~Administrative ~Assi~stant
y
Dated at Chicago, Illinois, this 16th day of April,
1980.
1.000,