NATIONAL RAILROAD ADJUSTMENT BOARD
PARTIES TO DISPUTE:
BROTHERHOOD OF RAILWAY, AIRLINE AND STEAMSHIP
CLERKS, FREIGHT HANDLERS, EXPRESS AND
STATION EMPLOYES
THE INDIANAPOLIS UNION RAILWAY COMPANY
STATEMENT OF CLAIM: Claim of the System Committee of the
Brotherhood (GL-6822) that:
1. The Carrier violated the Clerks' Agreement when on October
30, 1969, it summarily dismissed Ralph Kekar, Indianapolis, Indiana,
from service effective October 31, 1969.
2. Island Foreman, Ralph Kekar, shall now be reinstated to
service of the Carrier with seniority and all other rights unimpaired.
3. Mr. Kekar shall now be compensated for all wages and other
losses sustained accoun: this summary dismissal.
4. Mr. Kekar's record shall be cleared of all alleged charges or
allegations which are no; proven and may have been recorded thereon
as the result of the alleged notation named herein.
OPINION OF
BOARD: Claimant was employed by Carrier on December
14, 1966. On October 22, 1969, he was verbally instructed by the Trainmaster:
(1) to vacate his position and leave the property; (2) he was being withheld from service pending an investigation.
By letter dated October 24, 1969, Claimant was instructed to report on
October 27, 1969, for a formal investigation, the charge reading:
"You have been charged with insubordination and failure to properly perform your duties as Island Foreman on October 22, 1969,
position No. 53, thus causing a disruption in the mail unloading
schedule."
The investigation was held on the appointed date. No record (transcript)
of the proceedings was made. Following the hearing Carrier, by letter dated
October 30, 1969, informed Clamant:
"You have
been found guilty as charged and as of October 31,
1969, you are being discharged from the services of The Indianapolis Union Railway Company."
On November 3, 1969, the Local Chairman made demand on Carrier:
"The Local Protective Committee of BRAG does not agree with
your decision; please comply with Rule 28 of our current rules and
working agreement, so we may progress this matter further, per our
current rules and working agreement." (Emphasis ours.)
"RULE 28.
RECORDS AT INVESTIGATIONS AND HEARINGS
A copy of all statements made a matter of record at the investigation or hearing will be furnished to the Local Chairman."
(Emphasis ours.)
Carrier, by its nonfeasance-failure to make "all statements made a
matter of record at the investigation or hearing"-could not comply with the
demand. As a result, it prevented Claimant from perfecting his contractual
right of appeal to Carrier's initial findings of guilt as charged and assessment of the penalty: "discharged". Consequently, we find that Claimant was
denied due process.
Because in a discipline case: (1) an indispensable element is that the
charged employe be affordt d due process; and (2) the Carrier has the burden of proof-neither of which factors were satisfied in this case-we will
sustain the Claim.
Carrier in its Submission has argued past practice on the property as
a defense --17 years of not transcribing discipline proceedings. Evidence of
past practice is material in the interpretation and application of a rule only
when the rule as agreed to is ambiguous. Rule 28 is not ambiguous. The proffered defense is without merit.
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 Carrier did not afl'ord Claimant due process.
That Carrier failed to satisfy its burden of proof.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of THIRD DIVISION
Dated at Chicago, Illinois, this 9th day of October 1970.
Keenan Printing Co., Chicago, Ill. Printed in U.S.A.
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