Form 1 NATIONAL RAILRa1 D ADJUSTMENT BOARD Award No. 8412
SECOND DIVISION Docket No. 8253
2-SPT-CM-180
The Second Division consisted of the regular members and in
addition Referee John B. LaRocco when award was rendered.
( System Federation No. 162, Railway Employes'
( Department, A. F. of L. - C. I. 0.
Parties to Dispute: ( (Carmen)
(
( Southern
Pacific
Transportation Company
Dispute: Claim
of
Employes:
1. That the Southern
Pacific
Transportation Company (Texas and Louisiana
Lines) violated the controlling agreement, particularly Rule 34, when
they arbitrarily dismissed Carman Painter Eddie Aught, Jr. from service
without his being present at his investigation held on April
5, 1978,
Houston, Texas.
2. That accordingly, the Southern
Pacific
Transportation Company (Texas
and Louisiana Lines) be ordered to reinstate Carman Painter Aught, Jr.
to service with all seniority rights unimpaired and compensate him for
all monetary losses since April 32,
1978,
until reinstated.
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, a carman painter at the carrier's Englewood Car Heavy Maintenance
Plant at Houston, Texas, was dismissed from service on April 12,
1978
after an
investigation held on April
5, 1978
for being absent from his assignment since
February
3, 1978.
Claimant was not present at the investigation. Claimant's
representatives did attend the investigation.
The organization's primary contention is that the carrier failed to properly
notify the claimant of the charges and the investigation as set forth in Rule 34(b )
of the controlling agreement. Next, the Union argues that the investigation was
unfair in that the carrier's plant manager cited the violation by claimant,
conducted the hearing, dismissed claimant from service and declined the initial
appeal. Lastly, the organization asserts claimant was i11 and thus was properly
absent from work.
Form 1 Award No.
8412
Page 2 Docket No.
8253
2
-S PT-CM-
18o
The carrier urges us to deny the claim without a decision on its merits
because claimant, subsequent to the filing of his claim, signed a release dated
May
3, 1978
which, according to the carrier, f'u11y exonerates the carrier.
Alternatively, the carrier argues that notice was sufficient, the hearing fair,
and substantial evidence in the record to justify claimant's discharge,
Several months before the facts underlying this claim occurred the claimant
suffered injuries as the result of an accident. The claimant, as part of his
monetary settlement with the carrier to compensate him for his injuries arising
out of the accident, executed a general release after he filed this claim.
The first Paragraph of the release states:
"Fox and in consideration of a draft in the net sum of
#'Three Thousand Seven Hundred Fifty# - Dollars
($375C),
acceptance of which is acknowledged, I (we) hereby
UNCONDITIONALLY RELEASE and FOREVER DISCHARGE the
SOUTHERN PACIFIC TRANSPORTATION COMPANY (hereinafter
called Railroad) and all of its officers, agents,
employees, surgeons, physicians and any other parties
or institution in any way connected with its service
or affairs, frcm ate and ALL claims, demands and
causes of action for money and for damages, of every
kind and of whatsoever nature or basis, known as well
as unknown and unanticipated, in my (our) favor, arisi
out of an accident which occurred while I, Eddie Aught,
was employed
bay
Railroad, at or near Houston, Texas, on
or about November 22,
1977
as a result of which I,
Eddie Aught, sustained many serious and painful bodily
injuries which may be permanent and progressive, and I
(we) sustained other losses and damages. Section
1542
of the Civil Code of the State of California which
provides: 'A general release does not extend to claims
which the creditor does not know or suspect to exist in
his favor at the time of executing the release, which if
known
by
him must have materially affected his settlement
with the debtor.', and all laws or all other States of
like or similar effect, are hereby waived." (Emphasis
Added)
The unambiguous language in the release demonstrates that the carrier was
forever discharged frown all claims by this claimant relating to the single
accident on November 22,
1977
and does not extend to any other claims he may have
against the carrier. The claim submitted to this Board concerns events which
were ensued from February through April of
1978.
The release is irrelevant to
this claim.
Since the claimant's release does not cover this dispute, we must address
the merits of his grievance.
Rule
34(b)
states:
Form 1 Award No. 8412
Page
3
Docket No. 8253
2-SPr-CM-'80
"(b) at a reasonable time prior to the investigation, the
employe will be apprised of the precise charge against
him and the tune, date and place set for the investigation.
The employe shall have a reasonable opportunity by this
notice to secure the presence of necessary witnesses, and
representation if he so desires. A copy of the notice
directing the employe to report for investigation shall
be furnished to the local chairman of the craft involved."
The Ru1e,,in essence, requires the carrier to use means which are reasonaba~r
calculated to inform the claimant of the charges against him and the time and
place for the investigation. On March 22,
1978,
by-certified mail, the carrier
sent a letter to the claimant sufficiently describing the charges as well as the
time and place of investigation. The letter was sent to his last known address_
After the post office made several attempts to deliver the notice, it was
returned to the carrier. We also note that the claimant was orally informed by
one of his union representatives on March
30, 1978
that an investigation was to
b e held on April
5, 1978.
It is impossible to ascertain what other steps the
carrier could take to notify the claimant. The carrier used reasonable means to
notify the claimant and the claimant received actual notice. Thus, the carrier
complied with Rule
34.
The hearing officer, at the investigation, did engage in several different
roles but the multiplicity of roles did not in any manner prejudice the
claimant. If the claimant took his case more seriously, he would have attended
the investigation and defended himself. The claimants' representatives performed
well, under the circumstances, to present his defense in the most favorable
fashion. This Board has often ruled that even though the carrier assumes the
risk of denying a fair hearing when a carrier officer engages in several different
roles, the multiple roles must prejudice the claimant's rights under Rule
34.
(See second Division Awards Nos.
5360
(Knox) and
7196
(Rose).) An examination of
the record shows that the hearing was fair and that, even without the claimant's
appearance at the investigation, an able, albeit unsuccessful, defense was
presented on his behalf.
Lastly, there is substantial evidence in the record supporting the charge
that the claimant was absent from his assignment from February
3, 1978
to
April
5, 1978.
The claimant called in sick for the first five days of the period
and came back to work for two days. Then, the claimant was absent for the
remainder of the two month period. The foreman had not heard or seen the claimmzt
since February 16, 1978. If the claimant was genuinely absent due to an injury
or illness, he would have contacted his foreman. Instead, the claimant ignored
his fundamental obligation to protect his assignment. Thus, there is overwhelming evidence to support the carrier's charge that the claimant consistently
and inexecusably violated Rule 810 of the Rules and Regulations of the carrier.
A W A R D
The claim is denied.
Form 1
Page 4
Attest: Executive Secretary
National Railroad. Adjustment Board
s na,rie Brasch - Administrative Assistant
Dated a Chicago, Illinois, this 23rd day of July,
1980.
Award No.
8412
Docket No. 8253
2-SFT-CM-'80
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division