**REVISED**
Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
SECOND DIVISION
Award No. 1353
Docket No. 1330
00-2-97-2-86
The Second Division consisted of the regular members and in addition Referee
Edward L. Suntrup when award was rendered.
(International Association of Machinists and
( Aerospace Workers
PARTIES TO DISPUTE:
(Union Pacific Railroad Company (former Missouri Pacific
( Railroad Company)
STATEMENT OF CLAIM:
"DISPUTE - CLAIM OF EMPLOYEES
That the Union Pacific Railroad violated Rule 32 of the Agreement
dated June 1, 1960 between the International Association of Machinists
and the Missouri Pacific Railroad Company, a merged entity of the Union
Pacific Railroad Company, when it unjustly escorted Machinist G. J.
Morgan
off
its property and terminated his employment on May 12, 1997.
RELIEF REQUESTED
That the Carrier be ordered to restore the Claimant to service and
compensate him for all lost wages including all lost benefits.
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 1 Award No. 13535
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This Division of the Adjustment Board has jurisdiction over the dispute involved
herein.
Parties to said dispute were given due notice of hearing thereon.
1n May 1997 a trial was held under the Federal Employer Liability Act (FELA)
with the Claimant, G. J. Morgan, as plaintiff. Mr. Morgan had filed a legal claim
against the Union Pacific Railroad and its merged entity, the former Missouri Pacific
Railroad, on grounds that the work he did as a member of the Machinists' craft while
working at the Carrier's North Little Rock, Arkansas machine shop caused him to
develop a physical malady. The trial was held in the Circuit Court of St. Louis,
Missouri. On May 3, 1997, a jury in the FELA trial issued a verdict favorable to the
Claimant and the court handed down that verdict on May 5, 1997.
The Claimant had worked continuously prior to the FELA trial, had taken
vacation days to attend the trial, and attempted to return to work on May 12,1997 after
the May 5, 1997 verdict was issued.' Upon his arrival at work on May 12, 1997 the
Claimant was ushered off company premises by supervision and has not been permitted
to return to work since then. Thereafter, on May 20,1997 the Organization filed a claim
on behalf of the Claimant under Rule 32 of the labor Agreement on grounds that the
Claimant had been disciplined in violation of that Agreement. The claim was denied by
the Carrier.
Absent settlement of their differences over the May 12, 1997 release of the
Claimant from his job as machinist the parties subsequently docketed two different cases
before the Second Division of the National Railroad Adjustment Board. The Carrier
'There are some factual errors in the record with respect to the date that the Claimant tried to go back to
work. In the original claim of May 20, 1997 the Organization states that this date was May 5, 1997. The correct
date is May 12, 1997. The Carrier's Submission to this case continues to perpetrate this factual error, most likely,
as a result of the error in the original claim. On June 3, 1997 the Claimant himself filed a notarized affidavit in
Pulaski County, Arkansas wherein he gives the proper time-lines of the FELA trial and his subsequent attempt to
go back to work for the Carrier. The factual errors in the record which are due, it appears, to a typo in the original
claim filed, have no material bearing on the conclusions by the Board in this case. All discussion of fact-patterns
related to these issues will be based, in the Board's deliberations, on the Claimant's notarized affidavit of June 3,
1997. According to the Claimant's affidavit the verdict was issued on May 5, 1997. A check of the 1997 calendar
shows that May 5, 1997 was a Monday. An Exhibit in the record shows that the
jury
in the FELA trial reached its
verdict on May 3, 1997. That was a Saturday. Apparently there was a two day delay in issuing the verdict because
of the week-end.
Form 1 Award No. 13535
Page 3 Docket No. 13308
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docketed NRAB Docket No. 13301 with accompanying Notification of Intention to File
Ex Parte Submission on September 8, 1997. The Organization docketed NRAB No.
13308 with accompanying Notice to File Ex Parte Submission on October 24,1997. Both
filings were done properly within the time-lines outlined in the parties' labor Agreement
and both parties responded to the others' filings by submitting a Submission to the
National Railroad Adjustment Board.
Rule 32 of the labor Agreement states the following, in pertinent part.
"Rule 32 - Discipline - Investigations
(a) An employee covered by this agreement who has been in service more
than 30 days, or whose application has been formally approved, shall not
be disciplined or dismissed without first being given a fair and impartial
investigation by an officer of the railroad. He may, however, in proper
cases, be held out of service pending such investigation which shall be
promptly held.
(b) At a reasonable time prior to the investigation, the employee will be
apprized of the precise charge against him and the time, date and place set
for the investigation. The employee shall have a reasonable opportunity by
this notice to secure the presence of necessary witnesses, and
representation if he so desires. A copy of the notice directing the employee
to report for investigation shall be furnished to the local chairman of the
craft involved, but failure to furnish the local chairman with copy of the
notice shall not constitute a violation of this agreement or provide any
basis for a contention that the notice to the employee to report for
investigation was defective.
(c) An employee under investigation may be represented at the
investigation by the duly authorized local committee who may be assisted
by an officer and/or officers of the System Federation or International
Organization. (Attorneys for the Federation excluded.) If the employee
does not desire the duly authorized local committee to represent him, the
employee may act as representative and will be permitted to examine
witnesses. In event the employee elects to represent himself, the local
committee will be permitted to be present at the investigation and be
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present at any conferences in connection with an appeal by the employee
to the officer administering discipline if discipline is assessed. Copy of each
statement made a matter of record at the investigation will be furnished to
the employee and the local committee.
(d) If it is found that the charges against the employee are not sustained,
the record of the employee shall be cleared of the discipline; if suspended
or dismissed, the employee shall be reinstated to his former position, unless
otherwise mutually agreed, and shall be compensated for the wage loss, if
any suffered.
(e) Nothing herein shall abridge the right of the Carrier to reinstate, with
original seniority status, an employee who may have been dismissed for
reason other than prescribed in the Union Shop Agreement dated January
12, 1953. No employee will be reinstated under this paragraph (e) who has
been out of service for more than one year without the concurrence of the
General Chairman."
The Organization also cites an August 12,1996 Special Agreement which amends
Rule 32 of the June 1,1960 Agreement. That Agreement states the following in pertinent
part:
"This has reference to . . . the parties' desire to expedite the appeal and
handling process of discipline grievances. The parties believe an expedited
process will benefit all the affected parties concerned. Therefore, it is
agreed that for the progression of discipline claims only, the provisions of
this Agreement shall apply to their handling instead of the current two (2)
step appeal as stipulated in the following rules of the individual Collective
Bargaining Agreements (on this property):
-------------------------------
Missouri pacific: Rule 32 of the Agreement effective June 1, 1960
IT IS AGREED:
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(A) if the company's decision to discipline an employee is to be appealed
by the General Chairman or the employee involved, the General Chairman
or the employee will submit written appeal within sixty (60) days from the
date the discipline is issued. The written appeal will contain a full
statement of the Organization's or employee's objections to the discipline
issued and a request to discuss the Carrier's decision in conference with
the Carrier's highest designated officer to handle such disputes.
(B) if the discipline issued by the Carrier is appealed and a conference is
requested in writing to discuss claim or grievance, the parties shall meet
in conference within sixty (60) days from receipt of such request at a
mutually agreeable time and place. Within sixty (60) days from the date of
the conference, the Company shall notify the representative (or the
employee in cases where the employee had filed the claim or grievance) of
the results of the conference. If not so notified, the appeal shall be allowed
as presented, but his shall not be considered as a precedent or waiver of
the contentions of the Company as to other similar claims or grievances.
It is understood, however, that the parties may, by agreement, extend the
sixty (60) day periods established herein at any stage of the handling of the
claim or grievance.
(C) All discipline claims or grievances shall be barred unless within nine
(9) months from the date of the Company's officer's decision proceedings
are instituted by the employee or the duly authorized representative before
the appropriate division of the National Railroad Adjustment 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 agree in any
particular case to extend the nine (9) month period herein referred to.
(D) This provision shall not apply to requests for leniency and acceptance
of discipline by waiving investigation.
(E) This Agreement shall become effective on September 15,1996 and shall
remain in effect until such time that either party serves a thirty (30) days
notice on the other party indicating its desire to cancel the Agreement."
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The Carrier argues that the instant case under NRAB Docket No. 13308, which
was filed by the Organization, is improperly before the Board since the case had already
been docketed before the National Railroad Adjustment Board by the Carrier as NRAB
Docket No. 13301 and that ". . . all issues pertaining to this matter ". . . involving
Claimant G. J. Morgan's removal from service on May 12, 1997 .. . "were adjudicated
in that proceeding. The Board dismisses this objection. Docket 13301 dealt with the
propriety of the Claimant's case being before the Board. The instant Docket deals with
the merits of the case.
After reviewing the full record on this case, however, the Board is constrained
to conclude that the instant claim has no viability on its merits in view of a Release
Agreement signed by the Claimant, who was represented by legal counsel, with the
Carrier. Proviso of that Agreement signed by this Claimant with this Carrier released
the Carrier from ". . . any and all . . . personal injury claims or grievances of any nature
whatsoever, including but not limited to, labor disputes . . . " in return for the sum of
money as outlined in that Agreement.
The Board has ruled on many occasions that a claim under a labor Agreement
becomes moot in the face of such a waiver. See Third Division Awards 20832, 26470,
26694, 32571 and 32572. Also, First Division Award 24045 and Second Division Award
13034.
AWARD
Claim dismissed.
ORDER
This Board, after consideration of the dispute identified above, hereby orders that
an award favorable to the Claimants) not be made.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Dated at Chicago, Illinois, this 27th day of July, 2000.