Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 9726
SECOND DIVISION Docket No. 9430
2-SLSW-MA-183
The Second Division consisted
of
the regular members and in
addition Referee Robert W. McAllister when award was rendered.
( International Association
of
Machinists
PARTIES TO DISPUTE: ( and Aerospace Workers
( St. Louis Southwestern Railway Company
DISPUTE: CLAIM OF EMPLOYES:
That Machinist Apprentice C. Rucker, Jr., be reinstated to the service
of the St. Louis Southwestern Railway Company and compensated at the
pro rata rate for all time lost
commencing September
10, 1980, in
addition to any other wages earned elsewhere, and all benefits accruing
to other employees in active service
including vacation
rights and
seniority unimpaired. A claim is also made for actual loss
of
payment
of
insurance on his dependants and hospital benefits for himself,
and that he be made whole for pension benefits including railroad
and unemployment insurance, and 6% per annum compounded annually on
the anniversary date
of
claim, account Carrier violation Rule 24.
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 employer involved in this
dispute are respectively carrier and employer 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 Claimant, a machinist apprentice, was charged with violating Rules
801, 802, and 804 by entering into an altercation with another employe and
threatening him with a firearm. A formal investigation was held on September
16, 1980, and on October 3, 1980, the Claimant was advised of his termination
by the letter set forth below:
"Formal investigation was conducted September 16, 1980, in office
of
General Foreman-Trainer, Pine
Bluff,
Arkansas, in
connection with
your alleged violation of Rule 801
of
the Rules and Regulations
Governing Mechanical Department Employees, that portion reading:
'Employes will not be retained in the service who are careless
of
the safety
of
themselves or others, insubordinate, --- quarrelsome
or otherwise vicious
---.1
'Any act
of
hostility, misconduct or
willful disregard of negligence affecting the interest of the Company
is sufficient cause for dismissal and must be reported.' Also in
connection with
your alleged violation of Rule 802
of
the Rules and
Form 1 Award No. 9726
Page 2 Docket No. 9430
2-SLSW-MA-183
Regulations Governing Mechanical Department Employees, that portion
reading: 'Employees must not enter into altercations, --- while on
duty.' And finally with your alleged violation of Rule 804 of the
Rules and Regulations Governing Mechanical Department Employees,
that portion reading: 'Unless authorized by an officer of the Company,,
employes are forbidden to have firearms, or any other dangerous
weapon in their possession while on the property.'
For your responsibility in this matter, we developed in the investigat=ion,
you are hereby dismissed from the service of this Company.
Please arrange to turn in all Company property now in your possession.,
Acknowledge receipt and understanding of this letter on attached
copy and return to the undersigned.
S/D. L. MINTER
Locomotive Plant Manager"
The Claimant's dismissal was appealed by the Local Chairman by letter
dated October 28, 1980, wherein he asserted the action taken was in violation
of Rule 24 in that the hearing was not fair and the charges were not proper
nor were they proven. Two days later, Carrier's Plant Manager responded, as
follows:
"Reference your letter of October 28, 1980, appealing the dismissal
of Machinist Apprentice C. Rucker Jr. in my letter of October 3,
1980.
This is to advise you that your appeal is respectfully denied."
On November 26, 1980, the Local Chairman wrote to Plant Manager Minter
and advised him that he did not give a reason for his decision. Minter was
also informed the Local Chairman was rejecting the decision and appealing.
The General Chairman addressed an appeal letter to the Carrier's highest officer
on December 11, 1980, and he, too, raised the issue of the procedural defectiveness
of the Carrier's denial.
In consideration of the foregoing, it is incumbent upon this Board to
initially consider the procedural issue raised that, in denying the Organization's
claim, the Carrier did not meet the requirements of Article V of the National
Agreement dated August 21, 1954. Article V, Paragraph (a) of tie August 21,
1954, National Agreement reads, as follows:
"(a) A11 claims or grievances must be presented in writing by
or on behalf of the employee involved, to the officer of the
Carrier authorized to received same, within 60 days from the date
of the occurrence on which the claim or
grievance is
based. Should
any such claim or grievance be disallowed, the Carrier shall, within
Form 1
Page 3
Award No. 9726
Docket No. 9430
2-SLSW-MA-183
60 days, from the date same is filed, notify whoever filed the claim
or grievance (the employee or his representative) in writing of the
reasons for such disallowance. If not so notified, the claim or
grievance shall be allowed as presented, but this shall not be considered
as a precedent or waiver of the contentions of the Carrier as to .
other similar claims or grievances."
Our review of the many awards submitted dealing with the issue of what,
in fact, constitutes sufficient compliance with Article V, Paragraph (a) confirms
our conclusion that the language is clear and unambiguous. Simply stated, the
disallowance of a claim requires "the reasons for such disallowance" to be
communicated in accordance with Paragraph (a). "The provisions of Article V,
Paragraph (a) have been rather liberally construed..." (Award No. 7371, Second
Division) The logic behind that observation is that "reasons" for denial are
multiple and, sometimes, communicated in obscure and brief language. Award
7371, supra, quotes many prior holdings of this Board. What emerges from such
a review is that, however brief or obscure, this Board has found the denial
letter to either contain or incorporate by reference, a reasons) for the
denial. It need not be extensive. "I can find no basis for your claim." was
found to have satisfied Article V. (Award 16780, Third Division)
In this matter, the Carrier's denial is composed of two sentences. The
first references the appeal of the Claimant's dismissal. The second denies
the appeal. The letter does not contain a reason for denial nor does it invoke
the Carrier's position by reference or review. The letter does nothing more
than inform the Local Chairman the claim is denied.
Several awards were received on behalf of Carrier to the effect its liability
is limited, and once a sufficient declination is made, thereafter the matter
should be decided on the merits. We note authority for such findings occur in
issues of a
continuing nature
. We do not read Article V, Paragraph (a) in
that manner. Rather, we find Article V requires the claim is allowed as presented.
Accordingly, the claim is allowed for lost wages, but not interest and other
benefits sought. Allowance of this claim is done so with the understanding it
does not become a precedent or waiver of the contentions of the Carrier as to
other similar claims or grievances.
A W A R D
Claim sustained.
0005
ATTEST:
ZA.
/.
Nancy .ever - Executive Secretary
Dated at Chicago, Illinois, this 30th day of November 1983.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division