PENN CENTRAL TRANSPORTATION COMPANY
(Northeastern Region, Springfield Division)
STATEMENT OF CLAIM: Claim of the General Committee of the Brotherhood of Railroad Signalmen on the Boston and Albany Railroad (New York Central Railroad Co., Lessee):
OPINION OF BOARD: This is a discipline case in which Charge and Notice of Hearing was served on Claimant on August 27, 1968. Hearing opened on September 4, 1968, at the time and place specified in the Notice. At 3:30 P. M. the hearing was recessed until a time mutually agreeable to the parties. It reconvened and was concluded on January 23,1969. On January 28, 1969, Carrier issued its decision that Claimant was guilty as charged and he was dismissed from service. We find that this was accomplished in compliance with the contractual procedural due process mandated in Role 36(a) of the Agreement.
Petitioner, on January 29, 1969, as provided for in Rule 36(b), made written request for an appeal bearing. Carrier, on February 4, 1969, set February 7, 1969, as the date for the appeal hearing. Carrier's officer who was to preside at the hearing was directed, on the afternoon of February 6, 1969, to be at a meeting in New York City at 9:00 A. M., February 7. He, forthwith, attempted to reach the General Chairman by telephone calls to advise him of the circumstances and seek agreement to postponement of the scheduled hearing to a mutually agreed upon future date. Being unable to reach the General Chairman through that media Carrier's officer filed a telegram, at 6:49 P. M., addressed to the General Chairman:
The transmittal of the telegram was fouled-up and as a consequence it was not communicated to the General Chairman's home, to which it was addressed, until around noon of the following day, February 7. Further, on February 6, Carrier's officer mailed the following letter to the General Chairman:
At 9:30 A. M., February 7, Signal Supervisor Lombardi personally notified the General Chairman of the postponement.
The appeal hearing was held on February 12. There is no showing in the record that at this hearing Petitioner moved for dismissal of the charge and reinstatement of Claimant on the grounds that Carrier violated Rule 36(b) by failing to conduct the hearing within 10 days of Claimant's request. On February 18, Carrier affirmed the appealed decision. On February 20, Petitioner filed appeal with Carrier's Highest Appeals Officer. In the appeal letter the fact that the prior appeal hearing was not held within 10 days of Claimant's request was uttered, for the first time, as grounds for reversal of the initial decision. On May 8, Carrier's highest appeals officer affirmed the appealed from decision.
Petitioner in failing to move for dismissal of the charge and reinstatement of Claimant during the course of the February 14 hearing did not timely raise issue as to the procedural defect. By its participation in that hearing without raising the issue it must be held to have waived the procedural defect and was by its conduct estopped from raising the issue in a subsequent appeals proceeding. Not having timely raised the issue in the prior appeal proceedings there was no ruling relative thereto to be appealed to the Highest Officer. Compare with our Award No. 18352, involving the parties herein and the same Agreement Rule, in which the petitioner timely moved for dismissal of the Charge.
From our review of the record we find that: (1) Claimant was afforded due process; (2) there is substantial evidence to support Carrier's finding of Claimant's guilt as charged; and (3) the discipline imposed was reasonable.
We make no ruling as to whether Carrier can be released from its contractual obligation prescribed in Rule 36(b) by making a single officer unavailable to conduct an appeals hearing on a fixed date.
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;