BROTHERHOOD OF RAILWAY, AIRLINE AND STEAMSHIP
CLERKS, FREIGHT HANDLERS, EXPRESS AND
STATION EMPLOYES
1. Carrier action in dismissing Yard Clerk T. C. Healey on unproved charges and unjust, unreasonable, arbitrary, capricious and in abuse of its discretion.
2. Carrier shall be required to promptly restore Mr. Healey to service with all rights unimpaired and his record cleared of these charges.
3. Carrier shall be required to pay Mr. Healey for all time held out of service, including payments of amounts, which would have accrued to him had he been retained in service.
4. For any month in which claim is herein made for compensation on behalf of Mr. Healey, the Carrier shall also make premium payments in his behalf in the appropriate amounts required tinder Travellers Group Policy Contract GA 23000 as amended, for all the benefits prescribed in that contract.
(b) If the employe is dissatisfied he will be given a hearing if request is made to the next proper officer in writing within seven (7) days after being disciplined or dismissed, a copy of such request being furnished officer whose decision is being appealed. A fair and impartial hearing on the precise charge or charges shall be held within ten (10) days of the date hearing is requested and decision shall be
Mr. Purey: This hearing is being held pursuant to a letter dated August 13, 1969 addressed to Mr. W. V. Furey, Supt.: "I have been notified that effective August 8, 1D69, I am out of service of the Boston and Maine Corp. I hereby request a hearing under the provi_ions of rule 39-B of the BRAC agreement. Respectfidly, Thomas C. Healey" A letter dated August 18, 1969, addressed to Mr. Thomas C. Healey, 15 Willey St., Malden, Mass.: "Dear Sir: Please arrange to be in my office at 11:00 A. M., Friday, August 22, 1969, for a hearing. You are charged with larceny of sugar from car PRR 22794 on August 7, 1969. You may be represented acco,ding to your schedule requirements. Yours truly W. V. Furey, Supt." (Emphasis ours.)
"You are hereby discharged from the service of the Boston and Maine Corporation in accordance with the provisions of Rule 39 of the Agreement with the Brotherhood of Railway and Steamship Clerks, for insubordination in failing and/or refusing to testify and for leaving hearing held in my office on August 22, 1969, such hearing having been called pursuant to request contained in your letter of August 13, 1969.
Claimant failed to make a request for hearing - an indispensable condition precedent, prescribed in Rule 39 (b), to a contractual right to deny the charge and contest it on the merits. Therefore, the charge stands undcnied and not subject to subsequent attack.
For the foregoing reasons we will by application of Rule 39 (f) award that: (1) Claimant be compensated for all time lost from August 8, 1969 to August 28, 1969; and, the August 8, 1969 charge "larceny of sugar from car PRR 22794 on August 7, 1.96.9" he stricken in toto from Carrier's records: and (2) the Claim is denied as to the charge of August 28, 1969 - "insubordination failing and/or refusing to testify and for leaving the hearing * * * on August 22, 1969" and discharge from service; this because Claimant failed to exhaust his contractual remedies (due process) in the usual manner on the property.
FINDINGS: The Third Division of the Adjustment Board, 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 jurisdicti;m over the dispute involved herein; and
Claim sustained in part and denied in part as prescribed in the Opinion, supra.