Form 1 NATIONAL RAILRQID ADJUSTMENT BOARD Award No. 8690
SECOND DIVISION Docket No. 8522
2-SLSW-MA-181
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
Parties to Dispute:
( Aerospace Workers
(
( St. Louis Southwestern Railway Company
Dispute: Claim of Employes;
Part I: GRIEVANCE - Under Rule 22 of the Agreement effective November 1,
1953, as amended, wherein the St. Louis Southwestern Railway Company
assessed Grievant, Machinist R. M. Harris thirty
(30)
demerits
against his personal record for allegedly being insubordinate.
And, accordingly, Grievant's personal record should be cleared of
all alleged charges.
Part II: Claim for five hours fifteen minutes at the pro rata rate of pay
in favor of Machinist R. M. Harris for Carrier's violation of
Rules 1-2 (a),
3-1,
4-2, 4-7 (a), 5-2 and 100 in the controlling
Agreement.
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.
The organization argues that the investigative hearing provided in this
dispute did not meet the requirements of being "prompt", as the organization
alleges is required under Rule 24. The hearing was held 16 days after the incident
in question. The Board does not find this violative of Rule 24, nor did the timing
of the hearing (or the apparent mix-up as to a proposed postponement) adversely
affect the Claimant in his right to defend his position.
Following the hearing, the Claimant was given
30
demerits on a charge of
"being insubordinate when you left company property after your supervisor
instructed you to the contrary". Review of the records by the Board shows
that this charge is not in fact supported by the testimony. Claimant requested
permission to go "to town" during his meal period. It was this request which was
denied. There is no evidence that Claimant went "to town" in defiance of his
supervisor. The best evidence is that, instead, he went to "the hump" and the
"rip track" to obtain coffee and that doing so was not contrary to any supervisory
Form 1
Page 2
Award No. 8690
Docket No. 8522
2-SLSW-MA-181
order. On his return trip the record shows he was apparently off the Carrier's
property, but there is no proof to contradict the Claimant's statement that this
was accidental and even unknowing, incident to his returning from "the hump".
Based on any reasonable reading of the hearing record, the Carrier has failed
to meet the burden of proof required in such cases.
The Organization also claims pay for the employe because he was "directed"
to appear at an investigative hearing and was not compensated for such time. None
of the rules cited in the claim bears directly on this issue. Nor does Rule 22,
Grievances, specify pay for employe attendance at an investigative hearing.
There is some reference to no loss of pay for "up to three committeemen" in
conference; this cannot be stretched to include the Claimant. Absent specific
rule provision to the contrary, attendance at any investigative hearing cannot
be defined as working time -- regardless of whether the employe under investigation
is found guilty or innocent of the charge being investigated.
A WAR D
Part I of claim sustained.
Part II of claim denied.
Attest: Executive Secretary
National Railroad Adjustment Board
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
--7
osemarie Brasch - Administrative Assistant
Dated at Chicago, Illinois, this 29th day of April,
1981.