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Award No. 15456
Docket No. CL-16380
NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Don J. Harr, Referee
PARTIES TO DISPUTE:
BROTHERHOOD OF RAILWAY AND STEAMSHIP CLERKS,
FREIGHT HANDLERS, EXPRESS AND STATION EMPLOYES
THE TEXAS AND PACIFIC RAILWAY COMPANY
STATEMENT OF CLAIM:
Claim of the System Committee of the
Brotherhood (GL-6045) that:
1. Carrier's action in the dismissal of service of Mr. Hubert F.
Duncan, Clerk, at Marshall, Texas, was unreasonable, arbitrary,
capricious and unjust;
2. Mr. H. F. Duncan be restored to service with seniority, vacation, and all other rights unimpaired;
3. That Mr. H. F. Duncan's record be cleared of any and all
charges that may have been placed against him with this case;
4. That Mr. H. F. Duncan be compensated for any loss in
service he may have sustained from date of removal from service
until he is restored to service of the Carrier.
OPINION OF BOARD:
There is no question in this case but that the
Claimant was guilty as charged. Claimant refused to testify on his own
behalf at his hearing and in the criminal proceeding, wherein he was charged
with theft of Carrier's materials, he entered a plea of nolo contenders.
The Employes contend that Carrier was arbitrary in filing criminal
charges against Claimant, thereby causing the investigation to be held under
duress.
Award 4749 (Carter) states:
"Assuming that the Carrier instigated the arrests, the argument
is not sound. A prosecution under the criminal law has no effect
upon the contractual liabilities of the parties. It is altogether different from a situation where a party has an election of civil remedies, and after pursuing one, attempts to pursue the other."
We believe that the pendency of the criminal charges had no effect
upon Claimant's rights under the agreement.
The Employes further protested the handling of the case due to failure
of Carrier to properly follow Rule 21 (b) of the agreement. Rule 21 (b)
reads, in part:
"The right of appeal by employes or their duly accredited representatives in the regular order of succession up to and including
the highest official designated by the Railway is hereby recognized."
From a review of the record we find that Claimant was provided a fair
and impartial hearing and was granted every right he was entitled to under
the agreement. Claimant has not been deprived of due process of law.
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 31st day of March 1967.
Keenan Printing Co., Chicago, Ill. Printed in U.S.A.
15456