NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
J. Thomas Rimer, in, Referee
PARTIES TO DISPUTE:
BROTHERHOOD OF RAILROAD SIGNALMEN
THE WASHINGTON TERMINAL COMPANY
STATEMENT OF CLAIM: Claim of the General Committee of the
Brotherhood of Railroad Signalmen on The Washington Company that:
The Washington Terminal Company should justly compensate
Mr. V. L. Lishear for attending the investigation and the three days'
suspension he served and any notation on his service record should be
removed as a result of the investigation held September 9 1969.
(Carrier's File: V. L. Lishear, Maintainer. Discipline Appeal)
OPINION OF BOARD:
The Claimant Nvas notified by letter dated August
20, 1969 to report for an investigation of charges made against him on August
26, 1969. A similar notice to appear on that date was sent to Messrs. Gebhardt
and Hodges as witnesses to the event which occurred on August 18, 1969.
On August 21, 1969 Mr. Gebhardt notified the appropriate Carrier representative that he would be unavailable on August 26. Accordingly, the hearing
was re-set for September 9, 1969, and all parties, including the claimant,
were so notified.
The Organization pretested at the hearing that the investigation was
untimely, since the hearing was not held within seven days from the date of
charge and that the three day suspension served by the Claimant for his
actions on August 18 was improperly levied by the Carrier for the sole reason
that the seven day time limit of Article 6 Section 1 had been violated by a
unilateral extension of the date for hearing beyond this limit.
The Carrier extended the date for hearing on the dual premise that a
fair and impartial investigation could only result if the claimant could con
front his accuser, and that Gebhardt's notification that he would not be
available on the first date selected made postponement of the investigation
necessary, and the Claimant's failure to object was tantamount to a mutual
agreement to waive the seven day rule.
There is much to be considered in weighing the absolutes of time limits
negotiated by the parties in the several steps of a grievance procedure, particularly in discipline cases where the overriding factor is to insure fair and
impartial examination of the charge against the employe, the evidence adduced
in support of the charge, and the unimpeded opportunity for the employe to
offer his defense.
However, in the face of a recent award (No. 17167, Referee James R.
Jones) in a parallel case involving the same Organization, it seems unnecessary to examine and dispose of these considerations as they affect the
instant case. The facts are the same and this Board can find nothing in the
record of the case before us to distinguish it from the decision in Award No.
17167, from which we quote in pertinent part:
"Therefore, the question to be resolved is whether Claimant and
Carrier mutually agreed to the postponement of the investigation,
thereby waiving the ten (10) day requirement of Rule 63(a).
We find that the two parties did mutually agree to waive Rule
63(a). In Carrier's letter of July 19, Claimant was apprised of the
postponement and the reason therefor. Caimant is presumed to know
the provisions of the Agreement as well as the Carrier. If postponement of the investigation would have been prejudicial to Claimant
or unduly penalized him, Claimant had ample time to object to the
postponement. If he had objected, then obviously there would have
been no mutual agreement to waive Rule 63(a) as it pertains to the
ten (10) day requirement.
However, Claimant's failure to object to the postponement would
lead a reasonable man to believe that Claimant agreed to the postponement. Therefore, the provisions of Rule 63(a) as regards the
ten (10) day limit are waived.
Furthermore, we can find no arbitrary or capricious action by
the Carrier with respect to the investigation that would warrant this
Board to overturn the findings of the investigation nor the penalties
imposed against Claimant"
This Board concurs with the conclusion; reached by Referee Jones and
considers them controlling here.
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: E. A. Killeen
Executive Secretary
Dated at Chicago, Illinois, this 23rd day of April 1971.
Keenan Printing Co., Chicago, Ill. Printed in U.S.A.
18523