NATIONAL RAILROAD ADJUSTMENT BOARD
PARTIES TO DISPUTE:
BROTHERHOOD OF RAILWAY AND STEAMSHIP CLERKS,
FREIGHT HANDLERS, EXPRESS AND STATION EMPLOYES
THE NEW YORK CENTRAL RAILROAD (Eastern District)
(except Boston Division)
STATEMENT OF
CLAIM: Claim of System Committee of the Brotherhood of Railway and Steamship Clerks, Freight Handlers, Express and
Station Employes, on the New York Central Railroad Company, Buffalo and
East:
1. That the Carrier violated the Rules Agreement when, on
August 26, 1955, it gave a hearing to Mrs. Edith T. Maloney, Stenographer-Clerk in office of the Passenger Trainmasters, Central Terminal, Buffalo, N. Y., and on August 31, 1955, dismissed her from its
service for the following alleged reasons:
(a) Responsibility in mishandling of a considerable
amount of correspondence by not having answered same.
(b) Responsibility in improper handling of timeslip of
Engr. Boettcher dated June 24th.
(c) Failure to properly file correspondence and reports,
etc. having same placed promiscuously in file and desk
drawers with no semblance of order.
(d) Mishandling of correspondence, invoices and other
matters relating to uniforms for employes, some of which was
over one year old.
2. That the Carrier be required to restore Mrs. Edith T. Maloney
to her former position of Stenographer-Clerk, and reimburse her in
full from March 31, 1955, the date she was not permitted to resume
work because of the contemplated hearing and disciplinary action
which resulted in Mrs. Maloney's formal dismissal from its service on
August 31, 1955, in violation of Rules Agreement as aforesaid.
[124]
8426-2
125
OPINION OF BOARD:
At the outset we will consider part 1 of Organization's claim that the Carrier violated the applicable agreement
"* * * when, on August 26, 1955, it gave a hearing to Mrs. Edith
T. Maloney, Stenographer-Clerk in office of the Passenger Trainmasters, Central Terminal, Buffalo, N. Y., and on August 31, 1955,
dismissed her from its service for the following alleged reasons: * * *"
They need not be detailed here.
It is an admitted fact that on August 26, 1955 Claimant was occupying
an excepted position. A long line of decisions of this Board has held that a
person holding an excepted position could be discharged from that position,
or otherwise disciplined, without resort to the Clerks' Agreement.
Award
2941 (Carter).
That same Award (2941) was concerned with a Claimant holding an
excepted position being dismissed from service without an investigation.
"The question for decision,"
Referee Carter wrote in Award 2941,
"is whether her seniority rights under the current Agreement can
be destroyed without an investigation provided for in that Agreement. * *
"We think that Claimant's right to exercise her seniority and
displace a junior employe under the Clerks' Agreement has not been
impaired by the proceedings recited in this record. Her dismissal
from the excepted position could not have the effect of so doing
unless investigation was held in accordance with the provisions of
the contract under which they were acquired."
An investigation, however, was held by the Carrier in the case here
before us.
Considerable argument is offered on behalf of the Organization with
respect to the effect of Carrier's action on Claimant's seniority rights.
"*
* * These rights,"
such argument noted,
"the carrier made null and void when it deliberately withheld her from
service when she reported for work on March 31, 1955 and subsequent
thereto, and when it arbitrarily and capriciously dismissed her from
service on August 31, 1955. To correct that wrong we must put
Claimant back on the Stenographer-Clerk position, as sought by the
claim, and wherefrom she can exercise her seniority rights under
Rule 12, if unable to hold that position for any reason stated in
Rule 20."
8426-3
126
Had Organization claimed,
as it did in Award 2941, that Claimant
"* * * be restored to service with seniority unimpaired, * * *"
we could then proceed to examine the investigation held in the instant
case to determine if it was valid in the light of the defects charged by the
Organization against it in the case now before us.
The Organization, however, did not so claim in the case here. It asks, in
part 2 of the claim, that this Board rule
"That the Carrier be required to restore Mrs. Edith T. Maloney
to her former position of Stenographer-Clerk * * * "
By our Rules, and numerous Awards upholding them. we cannot expand
a claim before us. We are restricted to the language of the claim before us,
This Board, having no right to order Carrier to restore Claimant to an
excepted position, the claim will be denied.
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 Agreement was not violated as charged.
AWARD
Claim denied for the reasons set forth in Opinion of the Board.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of THIRD DIVISION
ATTEST: A. Ivan Tummon
Executive Secretary
Dated at Chicago, Illinois, this 31st day of July, 1958.