THIRD DIVISION
(Supplemental)
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood that the Carrier violated the provisions of the Clerks' Agreement:
EMPLOYES' STATEMENT OF FACTS: Under date of March 6, 1959, a position described as a new position of Machine Operator in the Office of Auditor of Disbursements was bulletined under BRC Notice No. 249, the duties of which were to operate National Cash Register Machine, Class 31, and perform related functions in connection therewith and such other general clerical duties as assigned.
Mrs. Hicks was the only applicant for the position and she was assigned thereto on March 23, 1959.
On May 13, 1959, Mr. Carlson, claimant's immediate supervisor, disqualified her, effective May 15, 1959. On May 20, 1959 Mrs. Hicks requested a hearing as to why she had been disqualified, as Mr. Carlson had failed to advise her definitely as to the reason for her disqualification.
Mrs. Hicks' request for a hearing was granted by Mr. McPherson, Vice President-Operations of the Minneapolis, Northfield and Southern Railway. Mr. McPherson acted as chairman of the hearing and made the first decision based on the evidence produced at the hearing, thereby eliminating any proper
OPINION OF BOARD: Employes object to an exhibit attached to Carrier's Rebuttal Submission. The exhibit is dated after Employes' notice of intent to file submission to this Board. The exhibit could not have been exhibited to Employes during handling of the claim on the property. The exhibit is excluded from our consideration. See Circular No. 1 of this Board.
Employes claim wrongful removal of Claimant from the position of Machine Operator in the office of the Auditor of Disbursements.
This obviously contemplates that such dispute as here first be "handled" with the immediate supervisor, with right of appeal thereafter up to and including the highest official designated by management to whom appeals may be made. Employes assert fatal defect in that the only formal hearing in this case was before the highest official designated by management to whom appeals might be made. However, Claimant and Employes clearly acquiesced and participated in such procedure, and must be deemed to have waived the right to any further or additional handling before the immediate supervisor, as prerequisite to hearing by Carrier's highest officer. See Award 9393 (Hornbeck). Also, it appears from the record that this procedural issue was raised for the first time on appeal to this Board; Employes thereby waived their right to raise the issue. See Award 11735 (Stark). (Had the issue been raised on the property, Carrier would have been afforded an opportunity to rebut with evidence such as the exhibit hereinabove excluded.)
Employes urge violation of that part of Rule 13 of the effective Agree ment which provides:
We are not persuaded by the record that Claimant's disqualification was caused by any violation of this rule.
Employes urge fatal error because the hearing officer determined and announced a decision (after the hearing) before the reporter's transcript of testimony at the hearing was completed. Many judges and many juries decide cases without a transcript of testimony. Nothing in this Agreement requires a transcript of testimony prior to decision by the hearing officer.
The only remaining issue is whether Carrier was arbitrary or capricious in removing Claimant from the position of Machine Operator. We have reviewed the record carefully. Employes have failed to sustain the burden of proof. The controlling rule is well stated in Award 11572 (Hall): 11966-1s 466