Docket No. MW-16776
NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
John J. McGovern, Referee
PARTIES TO DISPUTE:
BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES
CHICAGO, ROCK ISLAND & PACIFIC RAILROAD COMPANY
STATEMENT OF CLAIM: Claim of the System Committee of the
Brotherhood that:
(1) The Carrier violated the Agreement when it dismissed Section Foreman Alvin Heard on November 24, 1965, without benefit of
hearing as required under the provisions of Rule 17.
(2) The dismissal of Section Foreman Alvin Heard was without just and sufficient cause and on the basis of unproven and unsupported charges.
(3) The dismissal of Section Foreman Alvin Heard was based
on charges other than those set forth in a notice dated November
12, 1965 which was delivered to and received by the Claimant on the
evening of November 15, 1965.
(4) Because of each or any of the aforesaid violations, the
Carrier shall be required to reinstate Mr. Alvin Heard; the record
be cleared of the charges placed against him; he be compensated for
wage loss suffered, all in compliance with the provisions of Rule 19
of the Agreement. (System Case No. PR-D-189918/1-D-232)
OPINION OF BOARD: This is a disciplinary case involving the dismissal of the Claimant from the employ of the Carrier. An investigation
and/or hearing was held by the appropriate officer of the Carrier, as a result
of which the Claimant was given a written notice of dismissal.
Petitioner, on behalf of Claimant, alleges a violation of Rule 17(a) of
the Agreement, fundamentally because it contends that Claimant was dismissed without a fair hearing.
Rule 17 (a) provides:
"RULE 17.
DISCIPLINE AND GRIEVANCES
(a) An employe who has been in the service ninety (90) days
will not be disciplined without a fair hearing,
at which hearing he
may be represented by one or more representatives of his own
choice. He may, however, be suspended pending such hearing which
will be held within a period of twenty (20) days from date when
charged with the offense, or suspended from service. A decision will
be rendered within ten (10) days after the completion of the hearing."
The Carrier defends on the basis that its decision was not appealed
within the time limit specified by Rule 17 (b) of the Agreement (30 days)
as amended by the Agreement of August 21, 1954 (60 days). We agree with
the Carrier since the record of this case is quite clear on this point. An
appeal was not filed until almost four months after the written notice of
dismissal. This was too late. Carrier raised this point on the property, but
it remained unanswered both on the property as well as in the original
submission to this Board. Petitioner did come forward with the counter
defense in its rebuttal statement, based on Section 3 of Article V of the
August 21, 1954 Agreement, to the effect that this action of the Carrier
constituted "a continuing violation", and hence could be appealed at any
time. This was not raised on the property by the Petitioner and cannot, con;
sequently, be considered by this Board. There are numerous awards to this
effect and we support the reasoning and decisions contained therein. Because
of our dismissing this claim on procedural grounds, we need not go to the
substantive merits involved. We will dismiss the Claim.
FINDINGS: The Third Division of the Adjustment Board upon the
whole record and all the evidence, finds and holds:
That the parties waived oral bearing;
That the Carrier and the Employes involved in this dispute are resDectively 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 claim is barred.
AWARD
Claim dismissed.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of THIRD DIVISION
ATTEST: S. H. Schulty
Executive Secretary
Dated at Chicago, Illinois, this 30th day of November 1967.
Keenan Printing Co., Chicago, Ill. Printed in U.S.A.
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