Form i NATIONAL RAILROAD ADJUSTMENT BOARD
SECOND DIVISION
Award No. 13185
Docket No. 13033
97-2-95-2-61
The Second Division consisted of the regular members and in addition Referee
Herbert L. Marx, Jr. when award was rendered.
(Sheet Metal Workers' International Association
PARTIES TO DISPUTE:
(CSX Transportation, Inc. (former B&OCT Railroad
( Company)
STATEMENT OF CLAIM:
"1. The Carrier violated the provisions of the current and controlling
agreement, and in particular Rule 26 of said agreement, when they
improperly dismissed Sheet Metal Worker Leroy Moore, Jr., on
October 24, 1994 following an investigation that was held on
September 23, 1994, failure to work a Holiday.
2. That, accordingly, the Carrier be required to return Mr. Moore to
service with compensation for all time lost and that he be made
whole for all benefits, such as, but not limited to, vacations,
holidays, seniority, medical and dental benefits and any other fringe
benefit he may have been deprived of due to his improper dismissal
from the service of the Carrier."
FINDINGS:
The Second Division of the Adjustment Board, upon the whole record and all the
evidence, finds that:
The carrier or carriers and the employee or employees involved in this dispute
are respectively carrier and employee within the meaning of the Railway Labor Act, as
approved June 21,1934.
Form I Award No. 13185
Page 2 Docket No. 13033
97-2-95-2-61
This Division of the Adjustment Board has jurisdiction over the dispute involved
herein.
Parties to said dispute were given due notice
of
hearing thereon.
The Claimant was subject to an investigative Hearing on September 23, 1994
concerning his failure to report for work on September 5, 1994. Following the Hearing,
the Claimant was dismissed from service.
The Board found in Second Division Award 13186 that the dismissal
of
the
Claimant under other charges was proper. Thus the consideration
of
the instance here
under review becomes moot, except as to one aspect.
In contrast to the charge and investigative Hearing in Award 13186, the Claimant
was notified immediately following his September 5, 1994 absence that he was "being
removed from service pending investigation", (which occurred 18 days later).
Commenting on this, the Organization states:
"... (bjecause he was not using intoxicants or drugs, did not steal
company property, and was not insubordinate or was vicious, it is our
contention his removal at this time means he was tried, judged, and
sentenced without a fair and impartial investigation."
In response, the Carrier cites Rule 26 which states in part:
"Suspension in proper cases pending a hearing, which shall be
prompt, shall not be deemed a violation
of
this rule."
The Carrier argues that there are no specific reasons to which such pre-hearing
suspensions are limited and that it acted within its rights. The Board finds otherwise.
Rule 26 refers to pre-hearing suspensions in "proper" cases. Some meaning must be
given to the parties' use
of
the word "proper." Despite the Claimant's extended
unsatisfactory attendance record, the Carrier failed to demonstrate why it was "proper"
to suspend the Claimant prior to an investigative Hearing as to the cause
of
his absence
on September 5. The Award, while not concerning the moot dismissal action, sustains
the claim as to the Claimant's pay loss from September 6 through September 22, 1994.
Form 1 Award No. 13185
Page 3 Docket No. 13033
97-2-95-2-61
AWARD
Claim sustained in accordance with the Findings.
ORDER
This Board, after consideration of the dispute identified above, hereby orders that
an award favorable to the Claimant(s) be made. The Carrier is ordered to make the
Award effective on or before 30 days following the postmark date the Award is
transmitted to the parties.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Dated at Chicago, Illinois, this 23rd day of December 1997.