Award No. 11783
Docket No. SG-13613
NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Bernard J. Seff, Referee
PARTIES TO DISPUTE:
BROTHERHOOD OF RAILROAD SIGNALMEN
ILLINOIS CENTRAL RAILROAD COMPANY
STATEMENT OF CLAIM:
Claim of the General Committee of the
Brotherhood of Railroad Signalmen on the Illinois Central Railroad Company:
(a) The Carrier violated the current Signalmen's Agreement
when it dismissed Signal Foreman E. L. Denton from the service of
the Carrier, effective January 24, 1962, following an investigation held
to determine the facts in connection with his being absent from duty
on September 5, 6, 7, 8, and 18, 1961, alleged improper handling of
time roll, and alleged use of intoxicants.
(b) The Carrier be required to restore Signal Foreman E. L.
Denton to his position of Signal Foreman with all rights unimpaired
and compensate him for all loss of time due to the Carrier violation
outlined in paragraph (a).
[Carrier's File: 135-296-106 Spl.-Case No. 156 Sig.]
OPINION OF BOARD:
There does not seem to be any substantial difference between the parties as to the facts of the case. Signal Foreman Denton
absented himself from his duties without authority on September 5, 6, 7, 8 and
18, 1961. He could not discharge his responsibilities of properly handling the
time roll since hew" not on the job. There is a difference as to the reason
for the admitted absences: The Carrier claims he was intoxicated on September
5, 1961; the Organization says he was sick.
The Carrier sent Claimant a notice to attend a "* * * formal investigation
to be held in the Division Engineer's office, Carbondale, Illinois, at 10 A.M.,
DST, September 20, 1961, to determine the facts in connection with your
absenting yourself from your duties on September 5, 6, 7 and 8, alleged improper handling of timeroll, and alleged use of intoxicants." The Brotherhood
contends the notice was defective because it did not state the exact charges
against the employe and Rule 701 (a) of the current Agreement requires that
an employe be given advance notice in writing of the exact charges against him.
The Organization further states that an investigation to develop facts is not
the same as an exact charge and a hearing thereon; in the case at bar, after
the hearing held pursuant to the defective notice, the Claimant was discharged.
The Organization concludes that, based on the above statement of facts, it is
[891.]
11783-2
892
not necessary to decide the case on the merits because the hearing and the
Carrier's decision to discharge Claimant were not in compliance with the
Agreement and therefore the proceeding is a nullity.
The Awards are clear in holding that the reason for requiring a notice of
hearing is to assure an employe of a clear statement of the subject matter of
the hearing so that he can properly prepare his defense. Such requirements
also comport with the larger purpose of guaranteeing him a full, fair and
impartial hearing. This is an elementary requirement that must be met otherwise an employe might be exposed to a denial of due process of law.
An examination of the notice in the instant case shows the following:
1) The date, time and place of the hearing are clear and definite.
2) The precise derelictions of duty and the days on which they
occurred are spelled out.
The overwhelming weight of the Awards support the proposition that a
notice which reasonably apprises an employe of what set of facts and circumstances is under inquiry so that he will not be suprised and can prepare a
defense will assure protection of his substantial rights. The notice which is
the subject matter of the present dispute meets all necessary requirements.
Award 3270 (Carter) is apposite to the facts in this case:
"*
* * When he was advised by the notice to him that the improper handling of train order * * * was to be investigated, he knew
full well that his part in the mishandling was the subject of the
investigation. The notice advised him to report at the investigation
with his representative if he desired one. He knew full well that this
meant that he was charged with the mishandling of the train order
and that the investigation was for the purpose of determining his
guilt or innocence in connection therewith. * * * There is nothing in
the record to indicate that Complainant was in any manner mislead
or prejudiced by the form of the notice and charge made. * * * The
formation of a charge and the giving of notice thereof need not be in
the technical language of a criminal complaint. It is sufficient if it
appears that the one charged understood that he was being investigated and that he understood the dereliction of duty affording the
basis of the complaint.- * *"
Also see Award 10355 (Harwood):
"It specified clearly the offense; it stated the hour and date
thereof; and it stated the place where the offense occurred. As pointed
out in Award 4781 (Referee Stone) the purpose of the rule 'was not
to provide a technical loophole for escape from deserved discipline,
but to enable the employe to prepare his defense.' Also, it should be
added, that at the trial the Claimant said he had received proper
notice. The objection not having been raised at the trial is deemed
waived. (Award 4781, supra)."
Award 11443 (Dolnick):
"The charge does not need to contain the Rules which Claimant
allegedly violated. Awards 7139 (Cluster) and 6171 (Wenke). Claimant knew the nature of the charge. He was not misled, nor was he
deceived. Awards 5933 (Parker) and 5370 (Elson)."
Also see: the following Awards: 11170, 11327, First Division, 19699,
18803, 17609 and many others too numcrous to require mention.
17183-3
893
Even if the recited purpose of the hearing was to determine "facts", there
is nothing in the Agreement prohibiting the investigation official from evaluating those facts and taking appropriate action thereon.
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 18th day of October. 1963.
Dissent to Award 11783, Docket SG-13613
In this Award the majority instead of applying the Discipline Rule, Rule
701(a), in light of the facts devoted its effort to bending the clear language of
the Rule to fit what has been said in other cases in connection with other rules
of other agreements and under other fact situations. For example, the comparable rule in Award 3270, which the majority leans heavily upon, provided
that notice to the accused "shall be in writing and contain the specific charge
or nature of complaint" (emphasis ours) whereas, the applicable rule in the
instant case unequivocally provides that the accused will prior to the investigation be advised "of the exact charge or charges which have been made
against him."
Notifying an employe to attend an investigation "* * * to determine the
facts in connection with your absenting yourself from your duties without
proper authority on September 5, 6, 7 and 8, alleged improper handling of
timeroll, and alleged use of intoxicants." certainly does not advise the employe
of the exact charge or charges which have been made against him.
Equally erroneous but understandable when considered in light of the
reasoning employed by the majority in the remainder of the Award is the
conclusion that it was alright for Carrier to set up a fact finding investigation
and then dismiss the accused without a hearing on the exact charge or charges
which have been made against him.
There is nothing in either the agreement, the record or the Award to
justify the majority's upholding of the Carrier's disregard of the clear provision
of Rule 701 (a) ; therefore, I dissent.
/s/ G.
Orndorff
G. Orndorff
Labor Member