CONCURRING AND DISSENTING OPINION
AWARD 11593 (DOCKET 11498) _
We concur with the merits finding of the Majority that the Claimant
"was under instruction to comply with reasonable, special notification requirements" and that he "did not comply with those instructions
...."
However, we must strongly dissent to that portion of the Award that
holds that Claimant's voluntary action in executing a release in exchange for
certain consideration did not constitute:
" ....full settlement and release of any and all claims
of any nature, known or unknown, which I have or might
have against said Railway Company
...."
(Emphasis added).
The Railway Labor Act permits individuals to settle their own claims.
That right is something that neither the Organization nor this Board, under the
guise of contract interpretation, can abridge. We do not contest the Organization's right to pursue matters on behalf of its constituents, but when those
matters have been disposed of there is nothing of substance for this Board to
act upon. Here, the Majority has chosen to ignore the rights of the individual
in order to perpetuate the perceived responsibility of the organization when the
Claimant himself removed any coloration of a dispute by his settlement. In
Third Division Award 24869, involving similar circumstances, we find the following in dismissing the claim:
CONCURRING AND DISSENTING OPINION OF
THE CARRIER MEMBERS TO AWARD 11593
- 2 - (DOCKET 11498)
"The question before us is not whether signing such a release of all labor claims in addition to a release for
personal injury is in the Claimant's best interest; rather,
it is did the Claimant execute the document as asserted by
the Carrier. As we have indicated herein, the record
supports the Carrier's position, and this Board finds the
record substantially establishes the Claimant did, on
September 15, 1981, sign a release covering both his personal on-duty injury and all labor claims."
See also, Third Division Awards 22645, 25510, 26694, 26345, 20832 and 27043;
First Division Award 16675; Second Division Award 9875.
To conclude that a valid claim continued to exist after the matter was
mutually settled, is both a misapplication of law, and settled principles of arbitration. It is also an unnecessary expenditure of funds and time by this Board.
We Dissent.
P. V. Varga
M. W. Finger ut
R. L. Hicks
M. C. Lesnik
. Yost
Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 11593
SECOND DIVISION Docket No. 11498
88-2-87-2-131
The Second Division consisted of the regular members and in
addition Referee Ronald L. Miller when award was rendered.
(Sheet Metal Workers' International Association
PARTIES TO DISPUTE:
(The Atchison, Topeka and Santa Fe Railway Company
STATEMENT OF CLAIM:
1. That the Atchison, Topeka and Santa Fe Railway Company violated
the controlling agreement, particularly Rules 40 and 26, when they arbitrarily
assessed the personal record of Sheet Metal Worker A. L. Akins, Sr. thirty
(30) demerits following investigation held on June 11, 1986, Cleburne, Texas.
2. That accordingly, The Atchison, Topeka and Santa Fe Railway
Company be ordered to remove the thirty (30) demerits from Sheet Metal Worker
Akins' personal record.
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.
On May 28, 1986, the Claimant was late reporting for work. Subsequently, Claimant was charged with violating various rules, and following an
investigative hearing, was assigned thirty (30) demerits. The Organization
contends that Claimant complied with Rule 26 when he called the Carrier to
give notice that he would be late. The Carrier contends that Claimant failed
to comply with specific instructions (contained in a letter, dated May 21,
1986) concerning who to contact to give notice of an absence and who could
authorize such an absence.
Before dealing with the merits, two procedural issues must be addressed. First, the Carrier contends that this claim is moot because in the
course of resigning voluntarily from employment with the Carrier, Claimant
signed a "Release Form" to waive all claims against the Carrier. That release, however should not bar the organization from going forward with the
claim. The Organization has the right and the duty to police the Agreements
Form 1 Award No. 11593
Page 2 Docket No. 11498
88-2-87-2-131
to which it is a party. The organization must assure that individual settlements do not adversely affect collective rights. The Organization, as the
collective representative, must retain the right to pursue the matter if it
believes Claimant's waiver is wrong or improper. The duties of fair representation require the Organization to consider and to reconcile individual and
collective interests. There is no evidence in this case that the Organization
acted in an arbitrary or capricious or discriminatory manner by deciding to go
forward with the appeal.
Second, there is no evidence in the record of this case that the
multiple roles filled by Mr. Sanchez and Mr. Wooley denied Claimant any due
process rights. The actual manner in which the investigative hearing was
conducted provided Claimant a fair and impartial proceeding.
We find nothing improper on the part of the Carrier in requiring
Claimant.to adhere to a special notification and approval procedure. Claimant's record of absences, reporting late and leaving early justified the
special procedure, and the special procedure is consistent with the language
and intent of Rule 26. The Claimant's past record was properly introduced
into the record as justification for the issuance of the special instructions.
Similarly, the letter dated February 20, 1986, was properly introduced into
the record to substantiate that Claimant had been warned about his absence
record. The Claimant knew or should have known that he was expected to follow
the special procedure for reporting in late (see point #4 of the letter date
May 21, 1986). The Claimant did not follow that procedure on May 28th. The
Claimant cannot be excused from this obligation because he left the letter containing the special instructions in his tool box at work. The Claimant was
under instruction to comply with reasonable, special notification requirements. He did not comply with those instructions; it is not sufficient that
he notified the Carrier in another manner.
There is no basis in the record for this Board to modify the discipline assigned.
A WAR D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest:
Nancy J e r - Executive Secretary
Dated at Chicago, Illinois, this 19th day of October 1988.