Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 8624
SECOND DIVISION Docket No. 8437
2-ICG-MA-'81
The Second Division consisted of the regular members and in
addition Referee Rodney E. Dennis when award was rendered.
( International Association of Machinists and
Parties to Dispute: ( Aerospace Workers
(
( Illinois Central Gulf Railroad Company
Dispute: Claim of Employes:
1. That the Illinois Central Gulf Railroad violated the schedule "A"
agreement between the Illinois Central Gulf Railroad and the International
Association of Machinists - AFL - CIO, particularly Rule 39 of the
agreement when they dismissed machinist A. F. Dawud from service
January 26, 1979.
2. That accordingly, the carrier be ordered to pay machinist Dawud all wages
lost, including overtime wage losses until restored to service, return
to service with seniority rights unimpaired, full restoration of all
vacation and holiday losses and all rights pertaining thereto, pay
premiums on all Health and Welfare Benefits as paid while in service,
pay 10 (ten) percent interest on all lost wages, make claimant whole for
all losses and in addition, that his record be cleared of any reference
to the investigation and discipline rendered as a result of the
investigation conducted January 18, 1979, in accordance with the
applicable provisions of Rule 39 of the schedule "A" agreement, dated
April 1,
1935,
as amended.
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 ic"Ive& 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. F. Dawud, was discharged from carrier's service on January 26,
1979, for allegedly falsifying a release-to-work form by changing the date he
was to report to work from November 13, 1978, to November 18, 1978. Consequently,
claimant missed three days of work without carrier's permission. Carrier became
aware of the fact that claimant may have modified his release form on November 18,
1978. Claimant was charged on December 27, 1978 and directed to attend a formal
investigation into the matter. The investigation took place on January 18, 1979,
and claimant was dismissed from service on January 26, 1979.
Form 1 Award No. 8624
Page 2 Docket No. 8437
2-ICG-MA-181
The organization alleged that this delay from November
18, 1978,
to January
19, 1979,
was unduly long. Claimant did not receive a prompt hearing. This is
in violation of the agreement.
The organization also alleged that the hearing itself was improper, because:
the hearing officer failed to take into account claimant's testimony. He concluded
that claimant was guilty on the basis of a letter from Dr. Davidson, when Dr.
Davidson could have been called to testify and be cross-examined.
Petitioner's arguments on these two points are persuasive. From the record
of this case, it is clear that claimant was not afforded what could be considered
a prompt hearing. Rule
39
of the agreement clearly requires that the hearing
be prompt.
The Board is also of the opinion that Dr. Davidson's statement would have
been more valid if he had been present at the hearing to answer questions about it.
Carrier was careless in the way it handled the charges and the hearing.
While these shortcomings are not fatal to carrier's case, carrier should not have
failed to grant claimant his full rights. Given the fact that claimant is not
altogether blameless in the instance, it is the opinion of this board that
claimant should be returned to work with no back pay.
A W A R D
Claimant shall be restored to his former position with all rights and
benefits, but without compensation for lost time.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest: Executive Secretary
National Railroad Adjustment Board
semarie Brasch - Administrative Assistant
Date at Chicago, Illinois, this 18th day of February,
1981.