Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 9303
SECOND DIVISION Docket No. 8977
2-CR-FO-182
The Second Division consisted of the regular members and in
addition Referee John J. Mikrut, Jr., when award was rendered.
( International Brotherhood of Firemen and Oilers
Parties to Dispute:
( Consolidated Rail Corporation
Dispute: Claim of Employes:
1. That, in violation of the current agreement, Laborer A. E. Corley
was unjustly dismissed from service of the Carrier following trial
held on July 27, 1979.
2. That, accordingly, the Carrier be ordered to make the aforementioned
A. E. Corley whole by restoring him to Carrier's service, with seniority
rights unimpaired, made whole for all vacation rights, holidays, sick
leave benefits, and all other benefits that are a condition of employment
unimpaired, and compensated for all lost time plus ten (I0%) percent
interest annually on all lost wages, also reimbursement for all
losses sustained account of coverage tinder health and welfare and life
insurance agreements during the time he has been held out of 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, 193+.
This Division of the Adjustment Board has jurisdiction over the dispute
involved herein.
Parties to said dispute waived right of appearance at hearing thereon.
On June
14,
1979, Claimant, a Laborer at Carrier's Avon Diesel Terminal,
Avon, Indiana, with seniority date of June 20, 1978, was sent a Notice of Trial
directing him to attend an investigatory hearing on June 22,
1979
in connection
with the following charge:
"Absenteeism: May 2,
4, 6, 7, 15,
23, 29, 30
Jute 2, 32
4P 5v
62 92 11,..
Said notice was sent by Carrier via United States Certified Mail to Claimant's
last known home address but was undeliverable, and Claimant failed to claim same,
as well as a second notice, as was directed in Post Office's written instructions.
On July 2, 1979, the Post Office returned the two unclaimed notices to Carrier.
In the meantime, however, Organization requested and was granted a postponment
of Claimant's trial to July
9, 1979;
and, on June 26, 1979, Claimant telephoned
Carrier and was informed of the rescheduling. Said hearing, however, was again
Form 1 Award No.
9303
Page
2
Docket No.
8977
2-CR-FO-182
postponed a second time, and according to Organization Local Chairman, P. Kern,
because he was going on vacation from July 16 to July
31, 1981, "...
it was
agreed that the Carrier would re-schedule all trials after Mr. Kern's return from
vacation."
Claimant's hearing was conducted on July
27, 1979
without Claimant present
and with G. Keys, Organization's Committeeman, serving as Claimant's representative.
As a result of said hearing Claimant was adjudged guilty as charged and was
terminated effective July
31, 1979.
Said termination is the basis of the instant
claim.
Organization's basic contention in this matter is the Carrier's action herein
was in violation of Rule
20
(d) and (e) of the parties' current agreement thereby
denying Claimant his right to a fair and impartial trial and the right to
representation. In support of this position, Organization specifically asserts
that (1) Carrier improperly held Claimant's trial during the vacation of
Organization's duly authorized representative after having agreed not to do so;
(2)
Carrier neglected to send Mr. Kern a notice of the new trial date; and
(3)
there
is nothing in the record which shows that Claimant's trial was to be held on
July
27, 1979,
or that Claimant had been properly notified to attend this trial.
Carrier's position herein is that
"...
the evidence of record
...
established
Claimant's guilt as charged
..."
and that
"...
Claimant's failure to appeal (sic)
at his trial which he knew was pending and his further refusal to appear at the
appeal hearing demonstrates that he had no credible defense to the charge nor any
interest in his
employment relationship
with the Carrier". Additionally,
Carrier further argues that the termination of a short-service employe such as
Claimant for such a serious offense cannot be considered excessive or arbitrary
(Second Division Awards No.
62+0, 6710, 8380,
and
8381).
Regarding Organization's procedural contentions concerning the holding of
the trial on July
27, 1879,
Carrier argues that "every reasonable effort was
made (by Carrier) to notify Claimant of the trial date"; that
"...
Claimant had
no intention of attending the trial and deliberately thwarted Carrier's attempts
to serve written notice" (Third Division Award No.
21696);
and, that Carrier
fully complied with the provisions of Rule 20 (d) of the applicable Agreement
(Third Division Awards Nos.
15575
and
15007).
Carrier also posits that said
trial was held after repeated unsuccessful attempts were made to reach Claimant;
that Organization Committeeman G. Keys, made unsuccessful attempts) to reach
Claimant and agreed to represent Claimant at said hearing; that Mr. Keys was
"a certified Committeeman authorized to represent employes coming under
jurisdiction of
..."
Organization at Carrier's facility; and that Carrier had
been so advised of Mr. Keys' status by Mr. Kern himself in letter dated December
18, 1978;
and that Organization did not raise any objection to the conducting
of the disputed hearing at the time of the hearing itself nor did Organization
offer any credible defense in behalf of Claimant at that time.
While it can be said with absolute certainty that neither party is entirely
blameless herein or has attempted to effectuate the resolution of this matter
with the proper amount of diligence and dispatch which this Board would deem
F orm I
Page 3
Award No. 9303
Docket No. 8977
2 -CR-F O-' 82
to be appropriate in such matters, in the final analysis, however, after carefully
weighing the evidence which has been presented, the Board is persuaded that
Carrier's position must be sustained.
The resolution of this dispute focuses exclusively upon the question of the
fairness of Claimant's July 27, 1979 hearing and whether he was properly notified
of the rescheduling thereof. Admittedly, the Board is unable to find in the
record any evidence which would indicate that Carrier issued a notice to
Claimant regarding the rescheduling of said hearing as required in Rule 20 (d).
By the same token, however, the record does indicate that Carrier had endeavored
to contact Claimant on numerous occasions regarding the holding of previously
scheduled hearings for the same incident, but that these efforts were unsuccessful
-- thoug'-. no fault of Carrier. While the Board is unprepared to concur with
Carrier's assertion that Claimant "thwarted" Carrier's efforts in scheduling a
hearing or attempting to resolve the matter as expeditiously as possible, the
record sufficiently establishes that both Claimant and his Organization were
considerable less than fully cooperative with Carrier's efforts in this regard.
Given the extant circumstances which were operative at the time, Carrier's
subsequent actions cannot now be faulted.
Regarding Organization's contention that Carrier had agreed not to conduct
Claimant's trial until after Local Chairman Kerns had returned from his vacation
and further that Committeeman Keys was not Organization's "duly autlv rized
representative" empowered to represent Claimant at his hearing, suffice it
to say that, other than Mr. Kern's assertion, there is no probative evidence in
the record which supports this particular argument, and the evidence which does
exist (Mr. Kern's letter of December 18, 1978), clearly supports Carrier's
position as presented.
A WAR D
Claim denied.
Attest: Acting Executive Secretary
National Railroad Adjustment Board
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
By~
semarie Brasch - Administrative Assistant
Dated at Chicago, Illinois, this 22nd day of September, 1982.