Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 9227
SECOND DIVISION Docket Ng.
golg
2-FW8cD-CM-' 82
The Second Division consisted of the regular members and in
addition Referee Robert W. McAllister when award was rendered.
( Brotherhood Railway Carmen of the United States
Parties to Dispute:
( and Canada
(
(
Fort Worth and Denver Railway Company
Dispute:
Claim of Employes:
1. That under the current agreement, Carmen William Wyatt Shell was unjustly
dismissed on February 11,
1980,
from the service of the Fort Worth and
Denver Railway Company at Fort Worth Shop, Fort Worth, Texas.
2.
That accordingly, The Fort Worth and Denver Railway Company.be ordered
to compensate the aforesaid employee eight
(8)
hours pay for each work
day starting February lI,
1980,
until such time as this dispute is
settled; that his seniority and vacation rights be unimpaired; made whole
for all health and welfare benefits for sick leave benefits; life
insurance agreements, plus
6%
annual interest on all such lost wages;
and employee returned to carrier service.
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.
Claimant, a Caiman Helper (upgraded), employed March 1,
1978,
was, as a
result of an investigation held February I,
1980,
dismissed from service. On
October
14
and
30, 1979,
he was working as an upgraded carman. Car repairs to
cars SATX
5025
and SATX
1144,
respectively, were reportedly made consisting of a
change-out of one brake shoe on each car. The brake shoes involved were supplied. by
Abex Corporation. The owners, City Public Service, installed them on September
c:5,
1979.
Each brake shoe was stamped with an identifying code number prior to
installation. By letter of January 21,
1980,
the owner informed Carrier of these
facts and that on January
16, 1980,
each shoe was removed for inspection and
measurement. The brake shoes installed on September
25, 1979,
were found to be
intact. No new shoes were found on either car despite the Carrier billing for the
single brake shoe installations of October
14
and
30, 1979.
The Organization protests the conduct of the investigating officer at the
hearing and asserts his conduct in denying Claimant the right to question and cross
Form 1 Award No. 9227
Page 2 Docket No.
9019
2-FW8cD-CM-' 82
examine the investigating officer or his assistant prevented a fair and impartial
hearing. The Organization also contends the investigating officer improperly
adjourned the meting to hold a discussion with a Carrier witness.
The Board has carefully reviewed the record with respect to the Organization's
charges concerning the conduct at the hearing. The investigating officer in this
matter is a Trainmaster who had knowledge of material facts under investigation. The
Board notes the charges against Claimant were principally developed through the
testimony of the General Car Foreman to whom the car owners' representative addressed
the January 21,
1980,
letter of complaint for work not done. The technical representative from Abex Corporation corroborated those charges and testified to his personal
inspection of each of the marked test brake shoes on January
16, 1980.
Claimant
had sufficient opportunity to challenge this testimony as well as those documents
relating to records of car repairs submitted through the General Foreman.
It is, therefore, our con elusion that the restrictions placed upon Claimant
by the Hearing Officer were improper, but not to the degree Claimant was denied a
fair and impartial hearing.
The record established that Claimant was on duty on the dates in question.
The Abex witness clearly corroborated the car owners' claim that no repairs had
been performed. On balance, this Board holds the evidence supports the Carrier's
finding that Claimant did report repairs to the two cars, SATX
5N5
and SATX 114+.
A W A R D
Claim denied.
NATIONAL RAIhROAD ADJUSTMENT BOARD
By Order of Second Division
Attest: Acting Executive Secretary
National Railroad Adjustment Board
By
1 6~ZG.~J
~rie Brasch - Administrative Assistant
Dated at Chicago, Illinois, this 22nd day of July, 1982.