Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No.
84+5
SECOND DIVISION Docket No. 8383
2-UP-MA-'80
The Second Division consisted of the regular members and in
addition lteferec John J. Mikrut, Jr. when award was rendered.
( International Association of Machinists and
( Aerospace Workers
Parties to Dispute:
(
( Union Pacific Railroad Company
Dispute: Claim of Employes:
1. That under the terms of the current Agreement Machinist Boyd Gigax
(hereinafter referred to as Claimant) was improperly suspended from
service on February
15,
1978, and subsequently dismissed on March 20,
1978.
2. That, accordingly, the Carrier be ordered to restore Claimant to service
with seniority and service rights unimpaired and with compensation for
all wage loss from date of restoration to service.
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 was suspended fram service on February 15, 1978, and subsequently
dismissed on March 20, 1978,for allegedly being insubordinate and for his failure
to comply with instructions issued by his immediate supervisor to wear safety
glasses.
Carrier charges Claimant's actions were in violation of Rule B, 700, 702(B),
and 4116 from Form 7908 "Rules Governing Duties and Deportment of Employees,
Safety Instructions and Use of Radio". Said rules provide:
"Rule B
Employes must be conversant with and obey the rules and
special instructions. If in doubt as to their meaning,
they must apply to proper authority of the railroad for
an explanation."
Form 1 Award No. 841+5
Page 2 Docket No. 8383 _
2-UP-MA-'80
"Rule 700
Employes will not be retained in the service who are
careless of the safety of themselves or others, insub
ordinate, dishonest, immoral, quarrelsome or otherwise
vicious, or who do not conduct themselves in such a manner
that the railroad will not be subjected to criticism and
loss of good will, or who do not meet their personal
obligations."
"Rule
702B
Employes must comply with Instructions from proper
authority."
"Rule
4116
Suitable goggles must be worn when doing eye-dangerous
work. Spectacle-type goggles with or without corrective
lenses are recommended and must be equipped with side
shields. Employes having corrective lenses in personal
glasses will use cover-type goggles.
In designated eye protection areas, all employes must wear
goggles.
In certain designated operations, such as handling chemicals
and some abrasive wheel grinding, a face shield will be used
in addition to goggles.
Employes must not face nor face nor watch electric or
acetylene welding or cutting operations unless proper goggle
protection is used."
In support of its position Carrier contends that Claimant's actions were
clearly insubordinate in that he refused to comply with his supervisor's
instructions that he wear safety glasses. Carrier further contends that there can
be no mitigation in this matter since: (1) Claimant was familiar with the rule
which he violated; (2) Claimant as well as all other Shop Craft Employees, was
aware of the Mandatory Eye Protection Rule which is the basis of this dispute;
and
(3)
Claimant had been warned and instructed on many occasions to wear safety
glasses or face the possibility of disciplinary action.
Additionally, Carrier maintains that Claimant was afforded a fair and
impartial hearing in accordance with the parties' collective bargaining agreement.
As its final argument, Carrier charges that the Organization's appeal in this
matter is procedurally defective in that the Shop Superintendent's letter of
May
31, 1978,
which denied Organization's claim at the local level, was not
rejected within the prescribed sixty (60) day limit as specified in Rule
35(B)
of the parties' current agreement.
vorm 1 Award No.
8445
page
3
Docket No.
8383
2-UP-MA-'8o
Organization contends that Claimant's dismissal was improper for reasons
that: (1) no specific order was given to Claimant by his supervisor; and (2)
supervisor made no attempt to determine why Claimant was not wearing his safety
glasses at the particular moment of their confrontation. On this latter point,
Organization argues that Claimant's failure to wear his safety glasses was
motivated by fear for his own safety since said glasses "made him feel dizzy",
"caused distortion", and "obscured his side vision". Evidence of validity of
Claimant's fears, according to Organization, is demonstrated by the fact that
only two (2) days following his suspension, Carrier cancelled the disputed safety
glasses program thus recognizing that "the glasses posed a greater threat to
safety than an aid to safety".
Somewhat related the previously posited argument, Organization further
maintains that Carrier has acted in bad faith in this matter in that various
managerial representatives, after acknowledging Carrier's error in discharging
Claimant, stated to Organization representatives that Claimant would be restored
to service with compensation for any wage loss, but this commitment was later
repudiated by higher Carrier officers.
Regarding Carrier's contention that Organization failed to comply with the
time limits established by Rule
35(B)
of the parties' appeal procedure, Organization
maintains that such a letter of rejection, dated June 20,
1978,
was sent to the
appropriate Carrier officer in accordance with its contractual obligation.
Organization argues that said letter apparently was lost, and this occurance
probably was due to the confusion which was caused when there was a change of
chief clerks at Carrier's North Platte office during the same time period in
which said letter was sent. In support of this contention organization offers
"affidavits" signed by Claimant and General Chairman attesting that they each
received copies of said correspondence within the time frame as required by the
Agreement.
After having carefully studied and reviewed the complete record of this
instant case, this Board is led to the inescapable conclusion that Carrier's
argument concerning Organization's untimely rejection of the Shop Superintendent's
May
31,.1978
response to Organization's initial claim, is creditable, and therefore,
must be sustained.
Regarding this particular matter, Organization maintains that a rejection
letter dated June 20,
1978,
drafted by the Local Chairman to Carrier's Shop
Superintendent, was mailed in timely fashion in accordance with Rule 35(b).
Carrier, however, contends that said rejection letter was never received; although.
a copy of same was furnished to Carrier by organization on November 2,
1978.
Carrier further maintains that subsequent to Shop Superintendent's transmittal of
his May 31,
1978
letter to Local Chairman, no further correspondence was received
from Organization until July 26,
1978,
when a letter from the General Chairman
to Carrier's Chief Mechanical Officer was received.
The critical language of Rule 35(B) reads as follows:
"If a disallowed claim or grievance is to be appealed,
such appeal must be in writing and must be taken within
Form 1 Award No.
8445
Page 4 Docket No.
8383
2-UP-MA-'80
"60 days from receipt of disallowance, and the representative
of the Carrier shal be notified in writing of the rejection
of his decision. Failing to comply with this provision, the
matter shall be considered closed,
..."
(Emphasis added by
Board).
The requirement that the parties comply with the contractual time limits
specified in a collectively bargained grievance procedure is sufficiently
established and is of such universal acceptance among labor-management
practitioners that its validity and applicability need not be further expanded
upon by this Board (See: Second Division Awards Nos.
3865, 4297, 5307, 5308,
5385
and
6393).
Equally as well established, however, is the principle which
directs that a party alleging to have satisfied the requirements of a specific
performance clause assumes the evidentiary burden of proving, with sufficient
evidence, that such compliance was, in fact, satisfied. This latter principle
was clearly expressed in Third Division (Supplemental) Award No.
11505
wherein
the Board held as follows:
"It is a general principle of the law of agency that a letter
properly addressed, stamped, and deposited in the United States
mail is presumed to have been received by the addressee. But,
this is a rebuttable presumption. If the addressee denies
receipt of the letter then the addressor has the burden of
proving that the letter was in fact received. Petitioner
herein has adduced no proof, in the record, to prove _de
facto receipt of the letter by the Carrier.
The perils attendant to entrusting performance of an act to
an agent are borne by the principal." (Emphasis in original).
(See als©t Second Division Awards No.
5308, 7591
and
7955).
In support of its contention that its disputed letter of June
20, 1978
was
in fact sent, Organization offers two letters, one from Claimant and ore from
Organization's General Chairman, eact attesting that they had received copies of
said letter sometime during the last week of June
1978.
Organization contends
further that said letter, though originally mailed to Carrier as Organization
maintains, was probably lost, and if so, said loss probably occurred because
(the Chief Clerk's position at North Platte was changed during this period and many
papers were lost; unfortunately, this letter of June
20, 1978
was among them".
The Board discredits Organization's contention in this regard for several
reasons.
First, Organization alleges that Claimant's and General Chairman's respective
letters verifying their receipt of the June 20,
1978
letter, were "affidavits".
Apparently, Organization uses the word "affidavit" to describe said letters in
an effort to underscore the importance which Organization attributes to these
documents. This Board has carefully examined copies of said documents, as provided
by Organization, and finds that they are not "affidavits" as claimed, but merely
letters composed by Claimant and General Chairman respectively alleging that each
had received a copy of said letter
"...
about June
23-21+, 1978"
or "...during
last week of June,
1978".
Form 1 Award No.
$445
Page
5
Docket No.
8383
2-UP-MA-'80
Secondly, apart from the fact that said letters do not correspond to affidavit
form as alleged by Organization, and that said letters are "self-serving" documents
in nature; more importantly, it is significant to note that said letters, even if
they are valid (and this Board has no reason to conclude otherwise), only prove
that Claimant and General Chairman received their respective copies of said letter,
not that Carrier had received the original--which is the basic issue before us in
this particular consideration. Thus, Organization's offering of proof in this
regard is deemed as being insufficient to conclude with any degree of certainty
that Carrier did, in fact, receive the June 20,
1978
letter as alleged.
In arriving at the above posited conclusion, this Board has taken favorable
judicial notice of Third Division Award No. 22600 wherein Referee Louis Yagoda,
when reviewing a similar situation involving the sufficiency of evidence to
determine whether a rejection letter was sent and received within the specified
contractual time limit, concluded that:
"In the face of denial of receipt, the burden for proving
that the letter was timely sent falls on the sender. That
burden is not satisfactorily met by the supplying of only
a properly dated purported carbon copy of a letter allegedly
timely sent. Certain probative underpinnings are missing,
which we believe are not unreasonable to expect from
Carrier (sender) for convincing support of the action it
contends it took. Was the original of such letter put
in an envelope, properly addressed to the proper individual,
sealed, stamped and conveyed to a postal connection?
When and by whom?
We are unable to find the answer to these questions from the
combination of silence or unilateral assertion in t.ze record
which reaches us.
We must therefore conclude that Carrier (sender) has failed
to show that it timely met the response requirements put to.
it by Rule
...
and, pursuant to that Rule, sustain Claimants
in their contention that said claim was "allowed" by Carrier's
default." (Emphasis added by Board).
The third and final consideration upon which this Board has discredited
Organization's contention regarding this matter, which now becomes somewhat
unnecessary in light of the foregoing analysis, is that Organization's contention
that its July 20,
19'8
letter along with many others were lost because of personnel
changes at Carrier's North Platte office, appears to be nothing more than an
unsupported allegation which has no basis whatsoever in the record. Since
Organization has offered nothing more than mere allegation on this point, this
Board is led to conclude that no such evidence is available and no such situation
occurred.
Form 1
Page
6
A W A R D
Claim denied.
Attest: Executive Secretary
National Railroad Adjustment Board
Award No.
8445
Docket No.
8383
2-up-rrA-' 80
NATIONAL RAIIROAD ADJUSTMENT BOARD
By
Order
of Second Division
BY _
o0marie Brasch - Administrative Assistant
Dated t Chicago, Illinois, this 24th day of September, 1980
.