NATIONAL RAILROAD ADJUSTMENT BOARD
Horace C. Vokoun, Referee
PARTIES TO DISPUTE:
BROTHERHOOD OF RAILWAY AND STEAMSHIP CLERKS,
FREIGHT HANDLERS, EXPRESS AND STATION EMPLOYES
SEABOARD AIR LINE RAILROAD COMPANY
STATEMENT OF CLAIM:
Claim of the System Committee of the Brotherhood that the Carrier violated the Rules and Provisions of the Clerks'
Agreement:
(1) On June 27, 1955 when it withheld Ticket Office Clerk-Steno
A. D. Estill from service pending formal investigation and dismissed
him from Carrier's service on July 21, 1955, on charges not proven by
investigation held on July 7, 1955, and
(2) By permitting and/or requiring an official, designated as one
to whom appeal might be made, to participate in the investigation
and give evidence against Claimant thereby nullifying Claimant's
right of appeal to him.
(3) When it changed the corporate titles of officials stipulated
in the Agreement as those to whom appeals should be made and failed
to notify employes as required by Rule 87 of said Agreement.
(4) That, A. D. Estill be returned to service and paid for all
time lost on June 27, 1955, and subsequent thereto until re-instated,
at the rate of the position from which discharged as requested on
page 43 of the formal investigation. (Employes' Exhibit A)
OPINION OF BOARD:
On June 24, 1955, the Carrier advised the claimant that he was being withheld from service effective the following day and
that a formal investigation would be held on July 7, 1955. The charge
against him contained four parts, the first three of which were specific
instances of inefficiency and a disregard of instructions, the fourth alleging
general inefficiency and lack of cooperation.
The hearing was held as scheduled and the Claimant was represented by
the Division and Local Chairman.
During the hearing Mr. R. H. Williams, Local Chairman, placed the
following in the record:
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"While we are awaiting Mr. Graffin I would like to go on record
in stating as Mr. A. D: Estill's representative, and Local Chairman of
the Brotherhood of Railway Clerks, request that Mr. Estill be paid
for all time lost since being removed from his position, and that he
be returned to service on his position as Ticket Office Clerk-Stenographer, and that he be treated as a human being and Mr. Carter be
so instructed, and further, as I, Local Chairman of this Lodge be
furnished with three copies of the transcript of this investigation."
The instant parties are part of and signators to an agreement dated
August 21, 1954,
which was
negotiated under the following circumstances:
"WITNESSETH:
"WHEREAS, on or about May 22, 1953 certain proposals were
served on the carriers parties hereto by the organizations parties
hereto on behalf of employes represented by such organizations and
"WHEREAS, within thirty days following May 22, 1953 certain
proposals on behalf of certain of the carriers parties hereto were
served on certain of the employes of said carriers represented by
the organizations parties hereto; and,
"WHEREAS, a hearing was conducted by a Presidential Emergency Board (No. 106) and said Board on May 15, 1954 filed its
report together with its findings and recommendations with the
President of the United States:
"NOW THEREFORE IT IS AGREED: * * ~"
"ARTICLE V-CARRIERS' PROPOSAL NO. 7
"Establish a rule or amend existing rules so as to provide time
limits for presenting and progressing claims or grievances.
"This proposal is disposed of by adoption of the following:
"The following rule shall become effective January 1, 1955:
"1. All claims or grievances arising on pr after January 1, 1955
shall be handled as follows:
"(a) All claims or grievances must be presented in
writing by or on behalf of the employe involved, to the
offcer of the Carrier authorized to receive same, within 60
days from the date of the occurrence on
which the
claim
or grievance is based. "
Addendum 15 of the Master Agreement, August 1, 1945 provides that
in the Passenger-Traffic Department, "Grievances of claims will be handled
first with immediate superior, and appeals in connection therewith
through
the same channel."
By letter dated November 1, 1955 the Carrier raised objection that the
claim was not presented "in writing by or on behalf of the Claimant to the
officer of the Carrier authorized to receive same within 60 days from the date
of the occurrence on which it is based."
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The Organization in answer states:
"This is absurd and clearly indicates that Carrier has not read
all of the investigation. * · ·"
The Statement placed in that record by Mr. Williams (quoted above) is
recited and then the following:
"'Minutes of investigation recorded by Soundscriber Machine.'
"'Transcribed by W. R. Goodson, Secretary to Division Superintendent, Carolina Division, Savannah, Ga.'
"Claimant's immediate superior, Mr. Carter was present at the
investigation and heard the above quoted claim as dictated into the
recording machine by Chairman Williams. He received a typewritten
copy of the investigation prior to July 21, 1955, which incorporated
the above claim as his letter to Claimant of July 21, 1955, dismissed
him from the service on charges he contended were 'proved in the
investigation' of duly 7, 1955. Therefore, the claim was presented on
behalf of Claimant in writing to his immediate superior within the
time limit.
The records previously shown are proof that the claim
was subsequently progressed to officers of the Carrier authorized to
receive same within the time limits stipulated in the Agreement"
In Award No. 40 of Special Board of Adjustment No. 170 in which case
(Clerks vs. Illinois Central Railroad Company) the employes were claiming
an award because of the alleged failure of the Company to deny the claim
within the 60 day time limit in Article V, the Carrier urging that the claim
was not properly presented because the grieved employe was not named. The
Board stated:
"We are of the opinion that the 60 day period mentioned in the
above agreement is mandatory and not directory, but such provision
does not come into existence unless and until a valid claim is filed."
The Claim was denied.
This Board must uphold the agreement made in Article V and under the
facts presented we hold that the "notice in writing" is mandatory and not
regulatory and that the alleged notice In the record at the investigation was
not such notice as was contemplated by the parties In presenting this grievance. There was no notice to the Carrier instituting the grievance and therefore, there was a failure to properly present this claim and the Carrier may
raise that issue at any time.
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;
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That this Division of the Adjustment Board has jurisdiction over the
dispute involved herein; and
That the claim is barred.
AWARD
Claim dismissed.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of THIRD DIVISION
ATTEST: A. Ivan Tummon
Executive Secretary
Dated at Chicago, Illinois, this 27th day of June, 1958,