OPINION OF BOARD: This is a discipline case involving the dismissal "from all service on Southern Railway" of Claimant J. C. Smith. Claimant was discharged from carrier's employment by the following letter of General Manager J. A, Rust, on December 18, 1956, reading:
Carrier contends, and the record so shows, that Claimant Smith did not request an investigation "within five days", as provided for in Rule 40. He did on December 23, 1956, however, request a conference with General Manager Rust, regarding his dismissal, which conference was held on January 12, 1957.
On January 16, 1957 Smith wrote Superintendent Paul C. Shu seeking to exercise displacement rights allegedly under Rule 13(b), This request was denied by Superintendent Shu by letter of January 21, 1957, reading:
The Board finds that since Claimant Smith did not comply with the provisions of Rule 40, requesting the investigation there provided within the five days specified, he is assumed to have waived all his rights and protection thereunder; hence, this Board does not have authority to disturb Carrier's action in dismissing Smith from all service on the Southern Railway, effective December 18, 1956.
FINDINGS: The parties having waived oral hearing on this dispute, the Third Division of the Adjustment Board, 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