Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 9875
SECOND DIVISION Docket No. 8870
2-L&N-FO-'84
The Second Division consisted of the regular members and in
addition Referee Steven Briggs when award was rendered.
( International Brotherhood of Firemen and Oilers
Parties to Dispute:
( Louisville and Nashville Railroad Company
Dispute: Claim o f Employes:
1. That under the current and controlling agreement, as amended, Service
Attendant James D. Jackson, I. D. No. 422240, was unjustly suspended
from the service of the Louisville and Nashville Railroad Company on
June 6, 1979 through August 4, 1979, subsequently amended June 6,
1979 through July 1 6, 1979, inclusive, after a formal investigation
was held in the office of Mr. B. R. Montgomery, Master Mechanic, and
Conducting Officer, on May 9, 1979.
2. That accordingly James D. Jackson, Service Attendant, be restored to
his regular assignment at Howell Shops, compensated for all lost
time, vacation, health and welfare, hospital and life insurance and
dental insurance be paid effective June 6, 1979 through July 16,
1979, and the payment of 6% interest rate be added thereto.
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 EMployes 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 entered the Carrier's service on November 27, 1978, as a
Service Attendant at its Howell Shops. On April 7, 1979, he was responsible
for servicing cabooses on through trains on the 11:00 p. m. to 7:00 a. m. shift.
At 3:00 a. m. he was sitting in a lunch /locker room when a call came for him to
service some cabooses. He did not respond.
Locomotive Foreman B. R. Vaughn was sitting at his desk approximately
fifteen feet from the Claimant. After about five minutes had elapsed Vaughn
noticed that the Claimant still had not responded to the call. He shouted at
the Claimant, but still he did not move. At that point Vaughn walked over to
the Claimant and shouted at him again. He still did not respond. Vaughn then
lifted the corner of a nearby table and dropped it twice. The Claimant looked
up, whereupon Foreman Vaughn asked him if he was going to service the cabooses.
The record is unclear as to the Claimant's reply.
In any event, Foreman Vaughn concluded from this brief
conversation with
the Claimant that he did not intend to service the cabooses. He told him to go
home and assigned the work to someone else.
Form 1 Award No. 9875
Page 2 Locket No. 8870
2-L&N-FO-'84
On April 16, 1979, the Claimant received formal notice from Master
Mechanic B. R. Montgomery that he was being charged with sleeping on the job.
Formal investigation was ultimately conducted on May 9, 1979. The Claimant was
notified in a June 5, 1979, letter from the Master Mechanic that, as a result
of the investigation, he was being assessed a 60-day actual suspension.
Through the Organization the Claimant took issue with his suspension and the
matter is now before this Board.
Subsequent to filing his claim through the Organization, the Claimant also
filed a discrimination charge with the Evansville, Indiana, Human Relations
Commission. Under date of July 12, 1979, that charge was settled among the
Claimant, a Commission member, and a Carrier representative. No Organization
representative was party to the Commission settlement process.
The Claimant also signed the following statement on July 12, 1979:
"I hereby agree to return to service on a leniency basis and in
consideration of this, I agree to withdraw my claim of pay for time
lost as a result of me being assessed 60 days suspension from service
as a result of being charged with being asleep while on duty at 3:00
a.m. on April 7, 1979. "
The Carrier notified the Organization of the above settlement by means of
a July 13, 1979, letter.
The Organization believes that Foreman in the Claimant's work area have
condoned employe sleeping in the past and that it is therefore improper to have
suspended the Claimant. Furthermore, the Organization asserts that the Carrier
had no authority to settle the claim without participation of an Organization
representative, and that such settlement violated Rule 45, quoted in its
entirety below:
"The rights to make agreements covering rates of pay and working
conditions, and to interpret and apply them, respectively, for the
Management and the employes herein covered, is retained by the
parties signatory thereto. When settlement is not reached by
negotiation, the matter concerned may be pursued by further handling
under the provisions of the Railway Labor Act.,
The Director of Personnel for the railroad, and the General Chairman
for the employes, have authority to reach decision on any dispute,
grievance, controversy, or difference of opinion affecting this
agreement in any manner whatsoever, filed by the employe or employes,
whether the case comes to them on appeal or otherwise. Decision
reached on any such question by mutual agreement under this rule
shall be final, and shall not be open to any question thereafter.
General rulings or interpretations will not be made on this
agreement, except in conference held between the Director of
Personnel, for Management, and the General Chairman, for employes
concerned."
Form 1 Award No. 9875
Page 3 Locket No. 8870
2-L&N-FO-'84
The Carrier maintains that sleeping on duty is a serious offense and that
the record in this matter clearly establishes the Claimant's guilt. Furthermore, the Carrier notes that in settlement of the discrimination charge with
the Evansville Human Relations Commission, the Claimant agreed to return to
work on a leniency basis and to withdraw his claim for compensation for work
lost as a result of the suspension. Finally, the Carrier argues that the Claimant
has a right to settle his own claim without the Organization's participation
and that such settlement was not in violation of Rule 45.
The Procedural Issue. The Board has carefully considered the content of
Rule 45, and we conclude that it was not violated by the July 12, 1979, settlement
among the Carrier, the Claimant, and the Evansville Human Relations Commission.
The first paragraph of that Rule (quoted previously herein) retains for the
parties signatory to the Agreement the right to apply and interpret its provisions.
The July 12 settlement did not interpret any provision of the Agreement between
the Organization and the Carrier; rather, it addressed itself to the discrimination
charge filed with the Commission.
The Board notes that part of the settlement included the Claimant's withdrawal
of his claim of pay for time lost due to the suspension. We find nothing in
the Agreement to persuade us that an individual employe cannot withdraw his own
claim.
This Board fully recognizes and accepts the Organization's right and
responsibility under its Agreement with the Carrier to serve as exclusive
representative of covered employes. The Organization's concern about the
possibility of its representation role being circumvented in the instant case
is understandable. But the individual employe's right to represent himself is
also at stake here, and "the law and weight of arbitral decisions on the subject
of employee rights under the Railway Labor Act clearly sanction the right of an
individual employee to prosecute his grievance or claim with or without the
assistance o f a union representative. Second 3, First (j) of the Act, provides
that parties may be heard either in person, or by counsel, or by other representative;
as they may respectively elect. And the Courts, as well as the National Railroad
Adjustment Board, have consistently held that under the Act, an employee may
settle his own claims and grievances" (Public Law Board No. 2986, see also
Estes v Union Terminal Company, 89 F.2d. 768; Brotherhood of Locomotive Engineers
v Denver and Rio Grande R. Co., 411 F.2d. 2.1115; Elgin J. and E.R. Co. v Burley,
325 US 711; First Division Awards 7473, 7166, 10145; and Third Division Awards
19527, 20247, 20832).
But while the claimant withdrew his claim for pay for time lost, nothing
in the record before us persuades us that he withdrew his claim in its entirety.
Thus, we conclude that its merits are properly before this Board.
The Merits of the Claim. The Claimant was charged with sleeping on the
job and we are persuaded from the record that the charge was justified. Furthermore, there is not enough evidence before us to justify a conclusion that the
Claimant was treated in a discriminatory fashion.
Form 1 Award No. 9875
Page 4 Locket No. 8870
2-L& N-FO- ' 8 4
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest:
Nancy J. -Executive Secretary
Dated at Chicago, Illinois, this 9th day of May, 1984