Award No. 6087
Docket No. CL-6095
NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Dudley E. Whiting, Referee
PARTIES TO DISPUTE:
BROTHERHOOD OF RAILWAY AND STEAMSHIP CLERKS,
FREIGHT HANDLERS, EXPRESS AND STATION EMPLOYES
KANSAS CITY TERMINAL RAILWAY COMPANY
STATEMENT OF CLAIM: Claim of the System Committee of the
Brotherhood:
(a) That the charge preferred against John II. Philligin, which
was alleged to have occurred April 17, 1950, was not proven conclusively so as to establish that he was guilty beyond any doubt, and
(b) That the Carrier violated the stipulations of Rule 14 when
the Station Master failed to render decision within the stipulated
period of time after completion of the investigation and again violated the provisions of Rule 15 when the Superintendent failed to
hold hearing and render decision within the stipulated period upon
the appeal.
(c) That the record of John I3. Philligin be cleared of the
charge that he be reinstated and paid for all time lost as provided
in Rule 17 of the Agreement between the parties.
OPINION OF BOARD:
A rule requiring that an investigation be afforded
to an employe who is disciplined or dismissed is designed to protect an employe against arbitrary, capricious or discriminatory action by the carrier
by assuring a fair consideration of and decision upon the evidence presented
to support the charges against him. The rule here provides for an investigation on written request from one disciplined or dismissed and provides in
part: "A decision will be rendered within five (5) days after the completion
of the investigation". That surely means and requires a decision upon the
evidence presented at the investigation by the official who conducted the
investigation.
Where, as here, the decision is not rendered by the official who conducted
the investigation but is made by the official who preferred the charges against
the employe and who acted as chief complaining witness at the investigation,
it cannot reasonably be said that the employe has been afforded an investigation and decision in compliance with the rule.
Under the circumstances there is no necessity for passing upon the allegations of parts (a) and (b) of the claim, so we sustain only part (c) of the
claim.
[1142]
6087-2
17-43
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 Employe involved in this dispute are respectively
Carrier and Employe 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
The agreement was violated.
AWARD
Parts (a) and (b) of claim are dismissed.
Part (c) of claim is sustained.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
ATTEST: (Sgd.) A. Ivan Tummon
Secretary
Dated at Chicago, Illinois, this 24th day of February, 1963.