Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 11881
SECOND DIVISION Docket No. 11752
90-2-89-2-34
The Second Division consisted of the regular members and in
addition Referee Joseph S. Cannavo, Jr. when award was rendered.
(International Brotherhood of Electrical Workers
PARTIES TO DISPUTE:
(Union Pacific Railroad Company
(Missouri Pacific Railroad Company)
STATEMENT OF CLAIM:
1. That the Missouri Pacific Railroad Company is violative of Rule
32 of the June 1, 1960 controlling agreement and has dealt unjustly with and
damaged Electrician R. E. Burge at Kansas City, Missouri/Kansas when they
denied him a fair and impartial investigation, resulting in the unjust and
improper discipline of dismissal from service by letter dated January 29, 1988.
2. That the Missouri Pacific Railroad Company is violative of Rule
32 of the June 1, 1960 controlling agreement when they failed to furnish a
copy of each statement made a matter of record at the investigation (transcript) to Electrician R. E. Burge and the Local Committee.
3. That the Missouri Pacific Railroad Company is violative of Rule
31(a) of the June 1, 1960 controlling agreement when they failed to give forth
their reasons for their denial of the initial appeal and claim, and further
violated Rule 31(a) when they did not allow the claim as presented as prescribed in said Rule.
4. That, accordingly, the Missouri Pacific Railroad Company be
ordered to reinstate Electrician R. E. Burge to service with all contractual
rights concerning seniority, health and welfare benefits, vacations, etcetera,
and that he be compensated for all wage loss commencing with January 30, 1988
at the straight time rate, eight (8) hours per day, five (5) days per week up
to and including such time as he is reinstated to service, and, that his record be cleared of this discipline of dismissal.
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.
Form 1 Award No. 11881
Page 2 Docket No. 11752
90-2-89-2-34
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 was dismissed from the Carrier's service on January 29,
1988, as the result of a formal Investigation held on that same day. He was
charged with failure to return from a leave of absence. The Board has reviewed the contention of the Organization as they apply to procedural errors
made by the Carrier. The Board finds that the Carrier did not violate any of
the requirements of Rule 32. The Carrier established that it sent the notice
of Investigation to the Claimant's last known address. Rule 32 does not require the Carrier to assure that the Claimant receives notice. The Carrier
acted reasonably and responsibly in furnishing notice to the Claimant. The
fact that the Claimant did not appear at the Hearing did not mandate that the
Hearing Officer grant the Organization a postponement. The Board basis this
determination on its finding above, that the Carrier acted reasonably and
responsibly in providing the Claimant notice. Further, no allegation of failure to provide proper notice was made by the Organization at the Hearing. Its
request for a postponement was based solely on the fact that Claimant was not
present. This is insufficient cause for a postponement considering the Carrier's compliance with Rule 32. Further, the Claimant's failure to appear
does not deprive him or the Organization of appeal rights, which were duly
exercised. The Board has also considered the Organization's allegation that
the Carrier violated Rule 32 by failing to provide it and the Claimant with a
copy of the transcript. Rule 32 does not provide the precise method of furnishing "each statement made as a matter of record." The transcript and other
documents were available to the Organization on the property; there is no
evidence that it was denied access.
The Board does find, however, that the Organization makes a compelling argument regarding the Carrier's violation of Rule 31(a). Rule 31(a)
states clearly and unequivocally that:
"...Should any such claim or grievance be disallowed, the Carrier shall, within 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
...."
The record establishes that the Carrier Officer in the first level of appeal
simply denied the appeal without "reasons for such disallowance."
Form 1 Award No. 11881
Page 3 Docket No. 11752
90-2-89-2-34
This Board has ruled on previous occasions on rules such as Rule
31(a). Second Division Award 3312 concluded:
"In view of the clear mandate of this provision we have no alternative but to sustain the
claim."
Likewise in Second Division Award 9930, the Board stated:
"The parties have bargained precise time limits
in claims handling applicable to both the organization and the carrier. This Board has no
authority to bend or relax those requirements."
Therefore, Claimant shall be reinstated with his seniority and other
rights unimpaired. In regards to backpay, this Board finds no evidence in the
record indicating when the Claimant would have returned to duty. Accordingly,
the portion of the claim for wage loss is denied.
A W A R D
Claim sustained in accordance with Findings.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest:
' ncy
J. We ')Kr - Executive Secretary
Dated at Chicago, Illinois, this 13th day of June 1990.