NATIONAL RAILROAD ADJUSTMENT BOARD
PARTIES TO DISPUTE:
BROTHERHOOD OF RAILWAY AND STEAMSHIP CLERKS,
FREIGHT HANDLERS, EXPRESS AND STATION EMPLOYES
NORFOLK AND WESTERN RAILWAY COMPANY
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood (GL-5247) that:
1. The Carrier violated the Clerks' Agreement, except as amended
and supplemented when on November 7, 1961, it arbitrarily held Mr.
James E. Kidd, Trucker-Cleaner, out of service, and also when on
November 16, 1961 it summarily dismissed Trucker-Cleaner Kidd from
the service following investigation.
2. Trucker-Cleaner James E. Kidd shall now be restored to the
position of Trucker-Cleaner, Roanoke, Virginia Passenger Station,
with all rights unimpaired and shall be compensated for all wage loss
sustained the loss of any other benefits and all expenses incurred as
a result of his being arbitrarily held out of service and summarily dismissed, beginning November 7, 1961 and continuing until such time
that he is restored to the service of the Carrier.
3. Trucker-Cleaner James E. Kidd's record shall be cleared of all
alleged charges or allegations which may have been recorded thereon
as a result of the alleged violation named therein.
OPINION OF BOARD:
This is a discipline case. Claimant was employed
by the Carrier as Trucker-Cleaner at Roanoke, Virginia, Passenger Station.
On November 5, 1961, at about 11:20 A. M., an altercation developed between
the Claimant and another Trucker-Cleaner while they were engaged in loading
mail onto a passenger train. Both employes were notified by letter dated November 6, 1961, to report on November 8, 1961, for formal investigation on the
following charge:
"To determine responsibility in connection with your unbecoming
conduct while on duty at Roanoke Passenger Station at approximately
11:20 A. M., November 5, 1961."
Formal investigation was held as scheduled, at which the Claimant was
represented by two representatives of the Organization. Following the investigation the Claimant was notified on November 16, 1961, that he was dismissed from the service.
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The submission of the Organization to this Board is based primarily upon
what it considers to be technical violations of the Agreement.
The Board, upon consideration of the entire record, finds that the Claimant's substantive rights under the Agreement were not prejudiced in any way
by the charge made against him or by the notice given him of his dismissal
from the service.
There is likewise no proper basis for the contention of the Organization
that the highest officer of the Carrier designated to handle disputes failed to
render his decision on appeal within the time specified in Rule 27 (f). By the
very language of the rule, the thirty-day time limit for decisions is not applicable after appeal to the highest officer.
The evidence in the case clearly indicates that the Claimant was the
aggressor in the altercation that transpired on November 5, 1961, and, finding
no prejudicial error adversely affecting the Claimant's substantive rights under
the Agreement, the claim will be denied.
FINDINGS: The Third Division of the Adjustment Board, upon the whole
record and all the evidence, finds and holds:
That the parties waived oral hearing;
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.
AWARD
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of THIRD DIVISION
ATTEST: S. H. Schulty
Executive Secretary
Dated at Chicago, Illinois, this 26th day of April 1963.