Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 10384
SECOND DIVISION Locket No. 10213-I
2-WT-I-CM-'85
The Second Division consisted of the regular members and in
addition Referee Peter R. Meyers when award was rendered.
( Randy Speight
Parties to Dispute:
( The Washington Terminal Company
Dispute: Claim of Employes:
A false claim of misconduct was brought against the employee by supervisory officials of the carrier. The union represented him, and gave
him advice. The union representative did not make the minimally
essencial (sic) preparations for the hearing, and did not advise
employee as to what to expect or do. In other cases, the union, where
employees are white, informs the employee in advance as to how to
prepare and face an (sic) hearing. As a result of the failure of
fair representation by the union, employee was discharged by carrier.
Carrier failed to demonstrate that any violation occurred.
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 were given due notice of hearing thereon.
Carrier exercised its right of appearance at hearing thereon.
At 10:30 p.m. on October 10, 1981, two Supervisors observed the Claimant,
Randy Speight, sleeping on Car 882 at the station. As a result of the above
observation, Claimant was ordered to report for a hearing on October 23, 1981, to
answer the following charge:
Violation of Washington Terminal General Rule N which reads
in pertinent part: "Participating in any unauthorized or
unnecessary activity, while on Company property is prohibited".
When on October 10, 1981, about 10:35 p.m., two members of
supervision observed your sleeping on Car 882, Seat 63, in
Track 17 at the Station.
The hearing was held on November 6, 1981. On November 19, 1981, as a result
of the evidence produced at the hearing, Claimant was found guilty as charged and
was dismissed from Carrier's service.
Form 1 Award No. 10384
Page 2 Locket No. 10213-I
2-WT-I-CM-'85
On
January 4, 1982, the Organization appealed the discipline to Carrier's
President, R. A. Herman, the highest designated officer to hear such matters.
The appeal was heard on February 11, 1982.
On
March 15, 1982, President
Herman denied the appeal. On August 4, 1982, the
General Chairman
advised Claimant
that his case was found not to contain sufficient merit for further handling to a
Board of Adjustment. The Claimant was also informed in the August 4, 1982,
letter that he could file the case with the National Railroad Adjustment Board
himself if he did so by December 15, 1982.
On April 25, 1983, more than
nine months
from the Carrier's decision, the
Claimant progressed his case to this Board.
The Claimant's position is that the Board has jurisdiction to consider this
claim because, although Claimant did not institute proceedings before this Board
until April 25, 1983, Claimant communicated with the Board by letter on December
15, 1982, attempting to secure an extension of contractual time limits.
The record reflects that Claimant was duly notified through his attorney of
a Hearing before the Second Division for January 15, 1985. Claimant was unavailable
and the Hearing was postponed to February 14, 1985. Claimant advised the Board
by telegram that he would not attend the rescheduled Hearing.
The Carrier's position is that the claim is barred because the claim was not:
progressed to this Board until April 25, 1983, more than
nine months
from the
date of the Carrier's decision
in
this case, which was
on
March 15, 1982. The
Carrier relies
on
paragraph (c) of Article V of the August 21, 1954, Agreement,
which reads as follows:
"(c) ...A11 claim or grievances involved in a decision by
the highest designated officer shall be barred unless within
nine months from the date of said officer's decision
proceedings are instituted by the employee or his duly
authorized representative before the appropriate division
of the National Railroad Adjsustment Board or a system,
group or regional board of adjustment that has been agreed
to by the parties hereto as provided in Section 3 Second
of the Railway Labor Act. It is understood, however,
that the parties may by agreement in any particular
case extend the nine months' period herein referred to."
The Carrier states that no extension of the nine-month period was ever requested
by the Claimant or the Organization.
The Carrier further contends that the Claimant was correctly found guilty as
charged.
After reviewing the record, this Board finds that the claim must be denied
on procedural grounds. Paragraph (c) of Article V above makes it absolutely
clear that Claimant's claim should have been filed by December 15, 1982. The
claim was not filed until April 25, 1983. Therefore, this claim must be denied.
Having denied the claim on procedural grounds, it is unnecessary for this Board
to discuss the substantive issues involved in this case. (See Second Division
Awards 6853 and 6601.)
Form 1 Award No. 10384
Page 3 Locket No. 10213-I
2-WT-I-CM-'85
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest: __
Nancy er - Executive Secretary
Dated at Chicago, Illinois, this 24th day of April 1985.