Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 11564
SECOND DIVISION Docket No. 11416
88-2-87-2-57
The Second Division consisted of the regular members and in
addition Referee Edwin H. Benn when award was rendered.
(International Association of Machinists and
( Aerospace Workers
PARTIES TO DISPUTE:
(Southern Pacific Transportation Company (Western Lines)
STATEMENT OF CLAIM:
1. That, the Carrier improperly dismissed Machinist B. Millare (hereinafter referred to as Claimant) from service on May 14, 1986 due to alleged
violation of General Rules 604 and 810.
2. That, accordingly, the Carrier be ordered to return Claimant to
service with seniority and service rights unimpaired, with compensation for
all wage loss.
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.
By letter dated January 17, 1986, Claimant was recalled to work and
given thirty days to report. The recall letter stated that "if you do not
report within the thirty days from the date of this letter your name will be
removed from the Machinist seniority list and will be considered your resignation from the Southern Pacific Transportation Company." Claimant did not report for work within that period. According to the General Foreman, "We have
also tried to telephone him and have sent him additional letters" - again,
without success.
Claimant was charged with violation of Rules 810 and 604 which state
that "Continued failure by employes to protect their employment shall be
sufficient cause for dismissal." The charges were sent by certified mail to
Claimant at the same address as the recall letter. The return receipt is signed with Claimant's name. When Claimant did not appear at the Hearing, the matter was held in abstenia.
Form 1
Page 2
capricious.
Award No. 11564
Docket No. 11416
88-2-87-2-57
Substantial evidence exists in the record to support the Carrier's
conclusion that Claimant violated Rules 810 and 604. The record shows that
Claimant was recalled to work, did not appear within the given time and was
forewarned of the consequences of failing to report. Hence, Claimant failed
to protect his employment as charged.
The fact that the charging officer also served as the Hearing Officer
does not require a sustaining Award. As stated in Second Division Award 7119
relied upon by the Organization, such a multiple role in and of itself is not
prohibited. The key is whether Claimant was prejudiced by the multiple role
played by the same Carrier official. Here, we find no such prejudice. In
Award 7119 the Hearing Officer "activated the investigation, preferred the
charges, held the Hearing, reviewed the record, assessed the discipline, and
denied the appeal." The roles of the Hearing officer in this case did not
reach that level. The evidence in this matter came from another witness and
was mostly documentary. The assessment of discipline and appeals therefrom
were handled by Carrier officials other than the Hearing Officer. Nor do we
find any other basis to conclude that the Hearing was conducted in an unfair
fashion.
In light of the above, we cannot say that dismissal was arbitrary or
A W A R D
Claim denied.
Attest:
Nancy J. er - Executive Secretary
Dated at Chicago, Illinois, this 31st day of August 1988.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division