NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Arthur W. Devine, Referee
PARTIES TO DISPUTE:
BROTHERHOOD OF RAILWAY, AIRLINE AND STEAMSHIP
CLERKS, FREIGHT HANDLERS, EXPRESS AND
STATION EMPLOYES
PACIFIC FRUIT EXPRESS COMPANY
STATEMENT OF CLAIM: Claim of the System Committee of the
Brotherhood (GL-6349) that:
(a) The Pacific Fruit Express Company violated the current
Agreement between the parties at Bakersfield, California, when on
September 24, 1966, it dismissed employes Albert P. Ambriz, Frank
M. Aries, Alonzo B. Flores and Hector F. Rodriguez from service
pursuant to formal investigation at which the stated charges were
not proved; and,
(b) The Pacific Fruit Express Company shall now be required
to restore each of the above named claimants to service with all
rights unimpaired; to reimburse them for all expenses incurred
which would otherwise have been borne by the Company during
the period held out of service; to reimburse them for all travel
expenses necessary in other employment during said period; and
to allow each of them all wage loss suffered from time dismissed
until restored to service with all rights above specified.
OPINION OF BOARD:
This is a discipline case involving the dismissal from service of the four Claimants far an occurrence which took
place on August 13, 1966, at Carrier's Bakersfield Ice Plant, where Claimants were assigned, with hours Midnight to 8:00 A. M., with 20 minutes paid
lunch period included.
On August 26, 1966, Claimant Albert P. Ambriz, who was acting as shift
foreman on the night of August 13, 1966, was cited to appear at a formal
investigation and hearing, the citation reading, in part:
"You are hereby notified to be present at office of PFE Plant
Manager, Bakersfield, California, at 10:00 A. M. September 1, 1966,
for formal investigation of your alleged non-attendance to and
non-performance of duty when you were observed sleeping on the
job on August 13, 1966 at approximately 4:30 A. M. at the PFE
Bakersfield Ice Plant, for which occurrence you are hereby charged
with responsibility which may involve violation of PFE Company
General Rule J, reading as follows:
`We must
devote ourselves exclusively to our duties
during working hours; inattention to or non-performance
of duties cannot be permitted.'
Also, for formal investigation of your
alleged failure to report
to your immediate supervisor knowledge of alleged misconduct of
employes under your direct supervision which occurred approximately
4:00 A. M., August 13, 1966 at the PFE Bakersfield Ice Plant, for
which you are hereby charged with responsibility which may involve
violation of that portion of PFE Company General Rule C, reading
as follows:
`Any misconduct or negligence or withholding information about such will not be condoned."'
On the same date Claimants Frank M. Aries, Alonzo B. Flores and
Hector F. Rodriguez were each cited to appear at a formal investigation
and hearing, the citation in each instance reading, in part:
"You are hereby notified to be present at office of PFE Plant
Manager, Bakersfield, California, at 10:00 A. M. September 1, 1966
for formal investigation in connection with your allegedly being under the influence of intoxicants on duty at approximately 4:00 A. M.
August 13, 1966 at the PFE Bakersfield Ice Plant, for which occurrence you are hereby charged with responsibility which may involve violation of PFE Company General Rule G, reading as
follows:
`The possession or use on duty of intoxicants or presence on duty in a state of intoxication is
prohibited.'
Also for formal investigation of your alleged non-attendance
to and non-performance of duty when you were observed sleeping
on the job at approximately 4:00 A. M. August 13, 1966, at the PFE
Bakersfield Ice Plant, for which occurrence you are hereby charged
with responsibility which may involve violation of PFE Company
General Rule J, which reads as follows:
`We must devote ourselves exclusively to our duties
during working hours; inattention to or non-performance
of duties cannot be permitted."
Two other employes, involved in Award 16341, were also cited at
the
same time.
A joint hearing pursuant to the citations was held on
September 16, 1966,
at which time the Claimants were present and represented by the Local
Chairman of the petitioning Organization. A copy of the transcript of the
entire hearing has been made a part of the record. Following the hearing
the Claimants were dismissed from service.
In its claim to this Board the Petitioner alleges that "the stated charges
were not proved", which was also the only allegation made in the handling
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of the dispute on the property. In its submission to the Board the Petitioner
alleges, for the first time, that Claimants' procedural rights were violated
in the manner in which the investigation was conducted and the appeal was
handled, but such contentions, not having been made in the handling of the
dispute on the property, cannot be considered by the Board.
As concerns the merits of the case, a review of the transcript of hearing
shows that there was substantial probative evidence to support the charges
against the Claimants, and the nature of the offenses was such as to fully
warrant dismissal from service. The fact that the evidence against the
Claimants was furnished through the testimony of a patrolman and a special agent does not detract from it,
Based on the entire record, we find no proper basis for disturbing the
action of the Carrier, and the claim will be denied.
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 by the Carrier.
NATIONAL RAILROAD
ADJUSTMENT BOARD,
By Order of THIRD DIVISION
ATTEST: S. H. Schulty
Executive Secretary
Dated at Chicago, Illinois, this 24th day of May 1968
Keenan Printing Co., Chicago, Ill.
Printed in U.S.A~
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