Docket No. CL-16034
NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
(Supplemental)
John J. McGovern, Referee
PARTIES TO DISPUTE:
BROTHERHOOD OF RAILWAY AND STEAMSHIP CLERKS,
FREIGHT HANDLERS, EXPRESS AND STATION EMPLOYES
SOUTHERN RAILWAY COMPANY
STATEMENT OF CLAIM: Claim of the System Committee of the
Brotherhood that:
(a) Carrier violated the Agreement when it suspended Mr.
H. T. Brewer, Yard Clerk, Memphis, Tennessee, from the service of
the Southern Railway Company effective June 29, 1964, charged
"with allowing WFCX 8101, to move out of Mid-South Refrigerated
Warehouse as an empty on Train No. 50, June 6, 1964."
(b) Mr. H. T. Brewer shall be compensated for the amount of
$454.50, which is the total compensation due him while he was unjustly held out of service.
(c) Mr. Brewer shall have the record of this suspension removed from his personal records.
EMPLOYES' STATEMENT OF FACTS:
This dispute is between the
Brotherhood of Railway and Steamship Clerks, Freight Handlers, Express
and Station Employes, as the representative of the class or craft of em.
ployes in which the claimant in this case holds position, and the Southern
Railway Company.
Mr. H. T. Brewer bad a Group 1 seniority date of October 14, 1948.
He is regularly assigned as Yard Clerk at Memphis, Tennessee. His total
service dated back to July 7, 1947.
Mr. Brewer was suspended from the service of the Southern Railway
Company from June 29 until July 29, 1964.
Local Chairman, Mr. Frank P. McCollum, filed the initial claim in this
case on July 29, 1964, Employes' Exhibit A, and stated:
"This is a claim in behalf of H. T. Brewer, Yard Clerk, for
payment of salary during suspension of duties resulting from investigation dated June 15, 1964. A copy of which accompanies this letter.
charged. In these circumstances, the
discipline assessed was fully
juattfied and commensurate; there is no basis for the claim, and
it is respectfully declined."
The case was discussed by the parties in conference on October 21,
at which time the investigation was reviewed and carrier's previous decision
was reaffirmed.
b & pk R i ~k i f t
Rule 40 of the effective Clerks' Agreement of October 1, 1938, revised
as of June 1, 1952, reads as follows:
"RULE 40.
DISCIPLINE AND GRIEVANCES
(Revised, effective October 1, 1938)
(a) Employes will not be discharged or disciplined except for
cause. If request is made therefor within five days, an investigation shall be held. Investigation will be made by the proper officer
within five days after date of request, if possible, and in their
presence. They will have the privilege of bringing to such investigation one or more employes of their own selection to act as
representatives, provided such employes are in good standing on
their seniority district. Pending investigation, employes may be relieved from service. If found blameless, they will be paid for lost
time. If employe receives remuneration for services from Company
and others during suspension or dismissal, only actual amount lost
will be paid. If discharged or demerited, they will, upon written
request, be furnished with a written statement giving cause.
(b) Employes feeling an injustice has been done them, or having a grievance, may always submit their case to their superior
officer for consideration and review, and shall have the privilege
of appealing to the next ranking officer, provided such appeal is
made in within thirty (30) days after the reviewing officer has rendered his decision." (Emphasis ours.)
(Exhibits not reproduced.)
OPINION OP BOARD: The Claimant in this case was charged with
permitting Car WFCX 8101 to proceed from the Mid South Refrigerated
Warehouse to Train No. 50 as an empty on June 6, 1964. As a result of this
charge, an appropriate hearing was held on June 15, 1964. Claimant was
then notified that he was suspended without pay for a specific number of days.
On July 29, 1964, claim was filed on behalf of Claimant for wages lost,
by the Local Chairman, Mr. McCollum, and was addressed to the Superintendent of Terminals, Mr. Delaney. On this very same day, July 29, 1964,
Mr. Delaney replied to -Mr. McCollum as follows:
"Your claim in behalf of H. T. Brewer is declined."
The Organization contends that the above declination does not comply
with either Rule 43 of the basic Agreement or with Article V, Section 1(a)
of the Agreement dated August 21, 1954. Rule 43 reads as follows:
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"RULE 43. CLAIMS DISALLOWED
(Effective October 1, 1938)
When time is claimed in writing and such claim is disallowed, the
employe making the claim shall be notified in writing and reason for
nonallowance given." (Emphasis ours.)
Article V, Section 1(a), of the National Agreement dated August 21,
1954 reads, in part:
" * * * Should any such claim or grievance be disallowed, the
Carrier shall, within 60 days from the date same is filed, notify
whoever filed the claim or grievance (the employe or his representative) in writing of the reasons for such disallowance. If not so
notified, the claim or grievance shall be allowed as presented * * *:'
(Emphasis ours.)
The rules quoted above are clear, precise, and totally devoid of ambiguity. The answer to the original claim, given by an officer of the Carrier,
can in no way qualify as a compliance with the above-quoted Rule 43 or
with Article V, Section 1(a), of the National Agreement dated August 21,
1954. The Carrier does not contest this, but rather relies on another response
by its higher officer to a higher Organization officer who filed a letter on
the same subject matter.
In view of the foregoing, we will accordingly sustain the claim. See
Award 14749, including NDC Decision No. 5.
FINDINGS: The Third Division of the Adjustment Board, after
giving the parties to this dispute due notice of hearing thereon, and 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
That the Agreement was violated.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of THIRD DIVISION
ATTEST: S. H. Schulty
Executive Secretary
Dated at Chicago, Illinois, this 13th day of October 1967.
Keenan Printing Co., Chicago, Ill. Printed in U.S.A.
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