Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No.
8713
SECOND DIVISION Docket No.
8580
2-sPT-EW-'81
The Second Division consisted of the regular members and in
addition Referee John B. LaRocco when award was rendered.
( International Brotherhood of Electrical Workers
Parties to Dispute: ~ Southern Pacific Transportation Company
Dispute: Claim of Employes:
1. That under the current Agreement, Mechanical Department Electrician Ray
Robles-was unjustly treated when he was dismissed from service on
October
24, 1978,
following investigation for alleged violation of
portions of Rule
801
of the General Rules and Regulations of the
Southern Pacific Transportation Company. Said alleged violation occurring
on September
27, 1978.
2.
That accordingly, the Carrier be ordered to:
(a) Restore Claimant Mr. Ray Robles to service with all rights
unimpaired including service and seniority, loss of wages,
vacation, payment of hospital, medical insurance, group
dislbility insurance, railroad retirement contributions and loss
of wages including interest at the rate of
6
percent per annum.
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.
After an investigation held on October
17, 1978,
claimant, an electrician
in the Mechanical Department of the Carrier's Heavy Locomotive Maintenance Plant
in Sacramento, California, was dismissed from service for allegedly violating
Carrier Rxsle 801. The notice of charges sent to claimant at an address on file:
at the plant emphasized that claimant had engaged in dishonest conduct on
September
27, 1978
while the discharge letter dated October
24, 1978
stated
claimant had been careless, quarrelsome and vicious on September
27, 1978.
Claimant failed to appear at the hearing. At the commencement of the October
17,
1978
hearing, the organization offered evidence that the notice of charges had
ostensibly been sent to an incorrect address. When the organization's objection
to the notice was overruled, the committee walked out of the hearing and did not
participate further. The hearing officer conducted the hearing in the absence of
the organization. Even though the claimant was charged with committing misconduct
on September
27, 1978,
the hearing concerned events which occurred on September
26, 1978.
Form 1 Award No.
8713
Page 2 Docket No. 8580
2-SPT-EW-'81
The organization points to three purported defects in the hearing process
which, according to the organization, undermined the integrity of the hearing and
deprived the claimant of a fair and impartial Rule
39
hearing. First, the organization contends claimant was not given proper notice of the alleged offense
because, on the day of the hearing, the carrier personnel records showed claimant
living on Freeport Blvd. while the notice of charge was sent to a 49th St.
address and returned, by the post office, to the carrier. We see little merit in this
objection. The notice was sent to the claimant's address on file with the plant.
The carrier need not guarantee that claimant receive actual notice. Sending a
certified letter to the address on file at the plant satisfied the Rule
39
notice
requirements. Second Division Award No. 5486 (Dugan).
The organization's second objection is that the claimant was charged with one
offense and dismissed for another. Both the notice of investigation and the
dismissal letter expressly refer to carrier Rule 801 but the notice alleges
dishonesty and the dismissal letter states claimant engaged in other types of
misconduct. In evaluating this objection, we are concerned more with the substance
of the alleged offense rather than the label placed on the offense. After
reviewing the record, we are convinced that the notice of charge and the discipline
letter substantially referred to the same underlying offense. Both the original
charge and the dismissal letter concerned Rule 801 violations. At the hearing
the carrier presented evidence showing the claimant was dishonest and engaged in
other misconduct. There was no prejudice to the claimant since the investigation
covered only the events surrounding the alleged theft of electrical contactors.
Thus, the record shows that the claimant was charged with and disciplined for
misconduct in violation of Rule 801 which arose out of a single course of events.
Lastly, the employees object to the specificity of the notice of charges
contending the claimant was charged with an offense on September 27, 1978, while
the investigation addressed alleged misconduct committed by the claimant on September
26, 1978. This objection was raised, for the first time, before this Board. We
are precluded from ruling on objections which were not timely raised during the
handling of the dispute on the property. Third Division Award No. 9578 (Johnson).
Thus, we cannot consider the Organization's third objection.
The facts in this case are basically uncontested since the claimant did not
appear at the investigation and the organization was not present to conduct a
defense on the merits. On the evening of September 26,
1978,
a carrier Special
Agent discovered an automobile belonging to claimant's friend illegally parked on
carrier property. Inside the car, in plain view, the Special Agent observed a
cardboard carton marked "SP" and "ELECTROMOTIVE/8284664". The carton contained
electrical contactors. Later, when claimant arrived at the scene, he used abusive
language when communicating with the Special Agent. The Special Agent's rendition
of events was corroborated by the General Foreman and a Carrier Patrolman.
Electrical contactors, like those found in the automobile, had been missing from
the carrier's electrical shop. The silver tips on many of the contactors found in
the car had been removed. The silver is the most valuable part of the contactors.
Form 1 Award No.
8713
Page
3
Docket No.
8580
2-SPT-EW-X81
From the above facts, it is clear that claimant converted carrier property to
his own use. In addition, during the time the Special Agent was investigating the
carton in the car, the claimant became unnecessarily abusive toward the special
agent. Thus, the claimant was dishonest and engaged in other types of misconduct
in violation of carrier Rule 801.
A W A R D
Claim denied.
NATIONAL RAIIROAD ADJUSTMENT BOARD
By Order of Second Division
Attest: Executive Secretary
National Railroad Adjustment Board
By _.
emarie Brasch - Administrative Assistant
Dated t Chicago, Illinois, this 6th day of May,
1981.