STATEMENT OF CLAIM: Claim of Dining Car Steward G. P. Ruppenthal that he should be reinstated with seniority unimpaired and that he be paid for all time lost as result of being removed from service, October 2, 1945, for alleged irregularities in handling his accounts.
OPINION OF BOARD: The Organization presented the claim of Dining Car Steward G. P. Ruppenthal that he should be reinstated with seniority unimpaired and that he be paid for all time lost as a result of his "being removed from service, October 2, 1945, for alleged irregularities in handling his accounts".
On October 2, 1945, Claimant was met at end of his run in Atlanta, Georgia, and taken directly to office of Superintendent of Dining Cars where he was accused of various irregularities in handling of his accounts, including failure to account for all receipts at end of each run and shortage in his. change account. Several officials were present at the time and made affidavits supporting statement of Manager of Dining Cars that at that time he told Claimant it would be necessary to hold him out of service pending formal investigation which would be held as soon as final audit of his accounts had been completed; and that Claimant then and there admitted that he was guilty of the charges and stated that he did not desire a formal hearing.
On the same day Claimant was asked to turn in his pass and master key. Two days later Claimant's run was bulletined.
On October 11, 1945, the Superintendent of Dining Cars wrote Claimant the following letter:
This offer of a hearing was declined by Claimant in a letter in which he denied that he had stated on October 2nd, that he did not want a hearing at a later date. In that letter he cited the Superinendent's letter of October 6th, and the fact that his run had been bulletined as proof that he had been "fired" and for that reason declined the investigation on October 16th.
On November 19th, Mr. Kusch, Manager of Dining Cars wrote a long letter to Mr. Roberts, Chairman, setting out the position of the Carrier. On February 14th, 1946, Roberts wrote Kusch requesting the restoration of the Claimant to service. In his answer to this letter, February 18th, Kusch said, "I am, of course, still willing to give Mr. Ruppenthal an investigation".
After further correspondence Roberts wrote Kusch on July 22, 1946, as follows:
After further conferences and exchange of wires Kusch wired Roberts August 8th as follows:
Pursuant to the understanding shown by these wires, the Carrier brought its witnesses from Atlanta, Georgia, for the hearing. The Claimant and various members of the Organization were also present.
The members of the Organization then explained that they would not participate in the investigation "due to the fact that Mr. Ruppenthal was taken out of service and in fact discharged". Mr. Hart further explained that he thought the Claimant "has been discharged from the Company by virtue of Mr. Thomas' letter of October 6th."
The Organization from the time this claim was first presented to the Company has insisted that the Claimant was "fired" by the letter of Superintendent Thomas of October 6th, in which he said, "you are removed from further service", and that since Claimant was "fired" without a fair hearing he need not thereafter submit to an investigation but must be restored to service and paid for all time lost.
On the other hand, Mr. Kusch, Manager Dining Cars, has insisted that on October 2nd, when e and other officials talked to Claimant, Claimant was told that he was being taken out of service until an audit of his accounts was completed and that he would then be given an investigation.
There was no denial of this until almost two years later, August 4, 1947, when a written statement, not verified, of Claimant was filed as an exhibit to Employes Rebuttal Brief. In that statement Claimant said Kusch told him on October 2, 1945, he was "fired". As between this belated statement of Claimant and statement of Kusch and Thomas made shortly after conference of October 2nd, it would seem only fair to accept the latter as giving the facts of the case.
There is no dispute that Claimant was offered an investigation by Thomas' letter of October 11th.
Considering Kusch's statement to Claimant on October 2nd, Thomas' letter of October 6th, after bonding company had cancelled Claimant's bond, and Thomas' letter of October 11th, offering an investigation and fixing a date therefor, it is difficult to find any justification for Claimant's thinking and contending that he was "fired" by Thomas' letter of October 2nd. 3732-4 3(94
If he did actually so misconstrue the meaning of that letter his mind was promptly disabused by Thomas' letter of October 11th.
The Carrier was clearly within its rights under Rule 9 of the Agreement in taking Claimant out of service pending an investigation. Claimant suffered no loss by reason of his alleged misunderstanding of his status between October 6th and October 11th. He was not justified in declining the offered investigation. It necessarily follows that he was not justified in refusing to participate in the investigation which the Carrier and the Organization agreed to hold on August 14th, 1946.
Considering all of the record of this case, we cannot escape the conclusion that Claimant did not actually desire an investigation.
The Carrier was justified in asking Claimant to turn in his pass and master key while he was suspended from service.
FINDINGS: The Third Division of the Adjustment Board, after giving the parties to this dispute due notice of hearing thereon, and upon the whole record and all the evidence, finds and holds:
That the Carrier and the Employes involved in this dispute are respectively carrier and employes within the meaning of the Railway Labor Act, as approved June 21, 1934;
That this Division of the Adjustment Board has jurisdiction over the dispute involved herein; and
That the Carrier did not violate either Rule 9 or Rule 11 of the Agreement.