NATIONAL RAILROAD ADJUSTMENT BOARD
Arthur W. Devine,
Referee
PARTIES TO DISPUTE:
BROTHERHOOD OF RAILWAY, AIRLINE AND STEAMSHIP
CLERKS, FREIGHT HANDLERS, EXPRESS AND
STATION EMPLOYES
NORFOLK AND WESTERN RAILWAY COMPANY
(Involving employes on lines formerly operated by the
Wabash Railroad Company)
STATEMENT OF CLAIM: Claim of the System
Committee of
the
Brotherhood (CL-6773) that:
(1) Carrier violated the provisions of Rule 28 (a), (h.) and (i)
of the Schedule for Clerks when on May 9, 1969, it improperly and
unjustifiably dismissed Claimant V. P. Smith, following an investigation held on Thursday, May 8, 1969, to determine the facts and
fit the responsibility, including Claimants, if any.
(2) The Carrier will now be
required to
return Claimant to
service with all rights and privileges unimpaired.
(3) The Carrier will now be required to compensate Claimant
for all time lost as a result of being improperly and unjustifiably
dismissed.
(4) In addition to the money amounts claimed herein, the Carrier
shall pay Claimant an additional amount of 6"b per annum compounded annually on the anniversary date of claim.
OPINION OF BOARD:
The Claimant was dismissed from Carrier's
service by notice from the Superintendent dated May 9, 1969, for falsifying
payroll records on certain specified dates in January, March and April, 1969.
On May 2, 1969, Claimant was advised by the Assistant Superintendent:
"You are hereby notified to report to the office of the Superintendent, 200 Carr Street, St. Louis, Mo., at 9:00 A. M. on Thursday,
May 8, 1969, for an investigation to be held to determine the facts
and fix the responsibility, including yours, if any, in connection with
your alleged failure to properly
prepare payroll
records for January
8, 17, 24, March 6, 26, 27, 28, April 16 and 23, 1969, resulting in your
securing pay to which you we: a net entithd while workh-g as Chief
Clerk, Luuhex yard.
If you desire to have a representative and/or witnesses present
.;t the investigation. please arrange foe their presence."
The investigation was held on May 8, 1969, with the Assistant Supcrin.tendent presiding and acting as interrogating officer.
In its submission to this Board the Petitioner contends that Claimant's
procedural rights were violated, alleging (1) that the letter of May 2, 1969.
addressed to the Claimant by the Assistant Superintendent, did not charge
Claimant with a specific offense; (2) that the investigation was conducted
by the Assistant Superintendent and decision rendered by the Superintendent;
and (3) that proper appeal was not afforded on the proporty because a
secretary was not present at the appeal hearing to make a transcript of
such hearing.
As to the first contention, we find that the notice was adequate as it
informed the Claimant of the time, date and location of the hearing and was
sufficiently distinct to advise Claimant so that he could properly prepare
his defense. The notice met the requirements of the rule. Awards 76344, 16637,
17154, among others.
As to the second contention, we affirm Award 16347 involving the same
parties, wherein we held:
"The primary contention of the Petitioner is that Claimant's
procedural rights were violated because the decision following the
investigation was rendered by other than the official who conducted
the investigation, and that Claimant was denied an avenue of appeal
guaranteed him by the Agreement
We find no valid basis for such contention There is nothing in
the Agreement that prescribes who shall prefer charges, conduct
hearings, or that the officer conducting the hearing must render the
decision or assess the discipline. Awards 15714, 14021, 13383, 10015,
12001, 12138, among others.
The fact that the Superintendent rendered the decision did not
preclude his acting as the appeals officer (Award 10714). Further, the
record indicates that this is the established practice for handling
discipline cases on this Carrier."
See also Awards 16602, 15714, 16849 and 13383.
So far as the third contention is concerned, there is nothing in the
Agreement that requires the making of a transcript of hearings on appeal,
and the Carrier contends that a transcript has never been made of hearings
on appeal to the highest officer of the Carrier designated to handle disputes.
There is no showing that there were any "statements made a matter of
record" on the appeal to the Director of Labor Relations, as referred to in
Section (h) of Rule 28.
Based on the record, we find that Claimant's procedural rights were
not violated.
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In the investigation there was substantial evidence in support of the
charge, and, considering the nature of the offense, there is no proper basis
for disturbing the action of the Carrier.
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.
AWARD
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of THIRD DIVISION
ATTEST: S. H. Schulty
Executive Secretary
Dated at Chicago, Illinois, this loth day of September 1970.
Keenan Printing Go., Chicago, Ill. Printed in U.S.A.
18106