Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No.
9023
SECOND DIVISION Docket No.
9130-I
2-AT&SF-I-'82
The Second Division consisted of the regular members and in
addition Referee Edward L. Suntrup when award was rendered.
( Kimberly Shanks
Parties to Dispute:
( Atchison, Topeka and Santa Fe Railway Company
Dispute: Claim of Employes:
This claim involves the wrongful termination of Mr. Kimberly Shanks,
carman for the Atchison, Topeka and Santa Fe Railroad.
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 were given due notice of hearing thereon.
Claimant, Mr. Kimberly Shanks, entered the services of the Carrier, the
Atchison, Topeka and Santa Fe Railway Company on June
15, 1977
as a Relief
Messenger at Topeka, Kansas. After subsequently working as Laborer, Carman
Apprentice and Freight Caiman, Non-Seniority, Claimant was notified on February
14, 1980,
that, as a result of a formal investigation held on that day, relating
to his alleged violation of Rules 14 and 16 of Form 2626 Standard, "General Rules
for the Guidance of Employees",
1978
Edition, he was being assessed 20 demerits.
Since Claimant's personnel record now stood with an accumulation of 70 demerits,
he was notified on February
19, 1980
(after additional formal investigation on
that date) that he was removed from Carrier's service for his violation of Rule
31H of Form 2626 (ibid.) which stipulates that an employe is subject to dismissal for
60
or more accumulated demerits.
After appeal by the Claimant, the instant case was subsequently heard in
formal, open hearing before the National Railroad Adjustment Board, fully
assembled. with the instant referee present.
There are two issues before the Board in the instant case. The first is the
jurisdictional question of whether this case is properly before the Board in the
first place, i.e. of whether there has been a contravention of Rule
39
of the
Form 1
Page 2
Award No.
9023
Docket No.
9130-I
2-AT&SF-I-' 82
Agreement between the Carrier and the Brotherhood of Railway Carmen (amended
August 22,
1979,
effective November 1,
1979),
and/or of Sec.
3,
First (i)
of the Railway Labor Act. The second question, relating to the merits of the
case, is properly subject-matter of the Board only to the extent that the
jurisdictional question is affirmatively and positively rendered in favor of
the Claimant.
A complete analysis of the record related to the procedural manner in which
this case was appealed indicates that there was violation of Rule
39
(a) and
(b) of the Agreement between the Carrier and the Organization by the Claimant
since the appeals by the same were not handled in a timely manner with the
appropriate Carrier officers authorized to receive such. In addition, the appeals
were not handled "in the usual manner" between Claimant (with representation)
and the Carrier as required by Sec.
3,
First (i) of the Railway Labor Act, since
these appeals were not discussed in conference on property between-Claimant
(with representation) and authorized Carrier officers. Notwithstanding the
possible merits of the case, Claimant could have potentially avoided the
procedural pitfalls had he resorted, in his appeals, to assistance from his
Organization which is assuredly abundantly familiar with both the requirements
of the Railway Labor Act and the Agreement under which the Claimant was protected
rather than private counsel who, apparently, was not sufficiently privy to either
of these documents. Claimant chose not to do this, however, for reasons of his
own.
Numerous awards by this Board support the instant position that Claimants
should exhaust all means available in their appeals in terms of timely conferences,
on property, with appropriate officers before a case appears before the Board
itself (See inter alia Second Division Award
6555;
Third Division Awards 17166,
19620, 19709
et alias and Fourth Division Award 3511).
A W A R D
The Board dismisses the instant claim without expressing any opinion on the
merits of the case.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest: Acting Executive Secretary
National Railroad Adjustment Board
By
semarie Brssch - Administrative Assistant
Dated at Chicago, Illinois, this 14th day of April,
1982.