Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No.
8469
SECOND DIVISION Docket No.
8476
2-ICG-MA-'80
The Second Division consisted of the regular members and in
addition Referee Herbert L. Marx, Jr. when award was rendered.
( International Association of Machinists
( and Aerospace Workers
Parties to Dispute:
(
( Illinois Central Gulf Railroad
Dispute: Claim of Employes:
1. That the Illinois Central Gulf Railroad violated Rule 39 of the schedule
"A" agreement made between the Illinois Central Gulf Railroad and the
International Association of Machinists, AFL-CIO, when on August 10,
1978 machinist R. L. Cork was removed from service and subsequently
discharged August 24, 1978.
2. That accordingly the Carrier be ordered to reinstate machinist Cork to
service, seniority rights unimpaired and pay him for all wages lost
as a result of the carrier's violation of the controlling agreement.,
3.
Compensate the claimant for all overtime losses.
Make claimant whole for all holiday and vacation rights.
5.
Pay premiums on Travelers Policy GA-23000, Illinois Central Gulf
Hospital Association, Provident Insurance Policy R-5000, Aetna Policy
GD-12000.
6.
Pay interest of six
(6)
percent on all lost wages.
7.
Make claimant whole for all losses.
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 ,kct
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 discharged from service on August 24, 1978 on the Carrier's
finding that he "did in fact receive fuel in a tank on your property which final
had been consigned to and paid for by the Illinois Central Gulf Railroad". The
charges centered on allegations that the Claimant, in cooperation with others
Form 1 Award No.
8469
Page 2 Docket No.
8476
2-ICG-MA-180
caused more than 46,000 gallons of fuel oil to be diverted to the Claimant for
use in his personal business, while at the same time deceit had been practiced
in making it appear that the fuel had been delivered to the Carrier, causing the
Carrier to pay the supplier for such deliveries.
The Claimant signed a statement concerning the matter on August
8, 1978,
after an interview with a Carrier Special Agent. He was notified of suspension
from service of August 10,
1978
and notified of a formal investigation by letter
of August 11,
1978
"for the purpose of developing the facts and determining
your responsibility, if any, in connection with the fuel shortage at Birmingham".
The Organization argues that the Claimant did not receive a fair investigative
hearing in accordance with Rule
39
on three bases:
1. Claimant was suspended on August 10 without formal notice or
investigation by telephone message.
2. The charges were not precise.
3.
The hearing officer signed the notice concerning the hearing,
conducted the hearing, and signed the notice of discharge.
Rule
39
reads as follows:
"No employee shall be disciplined without a fair hearing
by a designated officer of the carrier. Suspension in
proper cases pending a hearing which shall be prompt shall
not be deemed a violation of this rule. At a reasonable
time period to the hearing such employee will be appraised
of the precise charge against him. The employee shall have
reasonable opportunity to secure the presence of necessary
witnesses and shall have the right to be there represented
by the authorized committee. If it is found that an employee
has been unjustly suspended or dismissed from the service,
such emplovee shall be reinstated with his seniority rights
unimpaired.: arid . compensated; For he wage loss, if any,
resulting from such suspension or dismissal."
The Board does not find that these considerations disturbed the opportunity
for the Claimant to have a fair and proper hearing. Rule
39
permits "Suspension
in proper cases pending a hearing", without specifying the method of delivery
of such suspension. The Claimant's August
8
statement, quoted below, involving
the possibility of responsibility for substantial theft, was a sufficiently
"proper case". As to the wording of the charge, it is reasonable to assume
that the Claimant was aware that the hearing would concern the same subject
about which he had given a statement three days earlier.
Form 1 Award No. 8469
Page
3
Docket No. 8476
2-ICG-MA-'80
As to the role played by the hearing officer, he was not involved in the
interrogation or investigation prior to the hearing and did not participate as
witness for or supporter of the Carrier's case. The investigative hearing
afforded the Claimant and the Organization full opportunity for defense.
The Board thus finds that the hearing was conducted in a fair and proper
manner.
The gist of the Claimant's defense at the hearing was that, while he did
receive and pay for fuel oil for his personal business use over a two-year
period, he was not aware that it was the property of the Carrier. This is in
substantial contradiction~to the voluntary statement he gave to the Carrier on
August
8,
just prior to the hearing. This statement as accurately read into the
record by the Special Agent, is as follows:
"At about April or May
77,
received 9,000 gallons fuel from
J. M. Black, about three months later, 4 to
5
thousand
gallons from Sammy Hayes. After December
77,
about 4 to 5
months lapsed before I got any more due to the UMWA strike.
April of
78
I received a load. June and August I received
a load. April was part of a load, approximately 5,000
gallons. June and August 9,000 gallons at
30¢
a gallon.,
The first load from Black I didn't know was railroad fuel.
After receiving from Hayes, I found out it was railroad
fuel.. In July or August of
77
I found out from Hayes it
was railroad fuel talking to him at the fuel tank.
Around 46,000 gallons I received from both. Black took
first load to West Jefferson April or May
77.
Later we
moved to Sumiton on old
78
Highway where Hayes delivered
the rest of the loads at
30¢
a gallon. We moved June
or July
77
to Sumiton. Always paid cash, some at
delivery, some in advance. My cousin T. E. Ford is not
involved."
Of particular significance are the sentences: "After receiving from Hayes,
I found out it was railroad fuel. In July or August of
77
I found out from Haye:s
it was railroad fuel talking to him at the fuel tank".
The carrier reached the conclusion, following the investigative hearing,
that the Claimant had knowingly participated with others in a scheme to receive
fuel oil intended for delivery to and the property of the Carrier, with the
participants sharing in financial gain, to the substantial monetary detriment
of the Carrier. The Board finds nothing in the record to show that this was an
unreasonable conclusion. Considering the gravity of the offense, the penalty of
discharge from service was not excessive. The Board finds no basis to interfere
with the action taken.
A W A R D
Claim denied.
F orm 1
Page
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest: Executive Secretary
National Railroad Adjustment Board
BY
semarie Brasch - Administrative Assistant
Dated at Chicago, Illinois, this 8th day of October, 1980.
Award No. 8469
Docket No. 8.76
2-ICG-MA-'80