(Joint Council of Dining Car Employes

      ( Local 516 PARTIES TO DISPUTE:

                    (Burlington Northern Inc.


      STATEMENT OF CLAIM: Claim of the Joint Council of Dining Car Employee, ·

      Local 516 on the property of the Burlington Northern, Inc. for and on behalf of Mr. MICHAEL A. NELSON, Chef, who was dismissed. from Carrier's service on January 26, 1971 as a result of an investigation held on January 14, 1971. Carrier shall now restore Mr. Michael A. Nelson to service with all rights restored and compensated for all time lost.


      OPINION OF BOARD: On January 2, 1971, Claimant was employed as a chef on

      Dining Car No. 1150 of the Carrier's West bound Train No, 25, the North Cnast Limited. At approximately 6:00 o'clock P.M., on January 2, 1971, the serving of a tour group on the involved train was completed and the serving of the regular Passengers on this train began. Shortly after serving the regular passengers, complaints were received by the waiters from the diners that so:n_ chicken was broom on the outside, but raw on the inside; and that some beep, pork and hamburgers had to be returned because of poor preparation. The Steward made an investigation and, in the opinion of the Steward, Clairoer_b was in nn condition to properly preFare the food and that at 8:C0 o'cloc?: en January 2, 1971, the decision to close the dining car was made by the Steward. On January 3, 1971, the Steward reported his action to the Director of Dining Car Department by wire and en January.8, 1971, Claimant ins notified as follows:


            "Arrange to appear at the office of the. Director, Dining and Sleeping Car Department, Room 100, St. Paul Union Depot, St. Feul, Minnesota at 10:00 a.m., Thursday, January 14, 1971 for formal investigation to determine the cause, establish the foots, and place the responsibility, if any, for refusing food service and closing Dining Car at 8:00 p.m. on January 2, 1971, Train 7#25.


            "You may arrange to have representatives and/or witnesses present according to governing schedule rules.


                                    J. W. Kirby"


I
                            Award Number 19579 Page 2

                            Docket Number DC-19755


          A formal investigation was held on January 14, 1971, and as a result of the investigation, Claimant was notified on January 26, 1971, that he (Claimant) was dismissed fr through the highest officer who, on May 7, 1971, declined this payment. Carrier takes the position t handling on the property. The Organization contends that the General Chairman, in his letter of Marc the Claimant, a time, date and place should be arranged for conference on this appeal. The initial conference was held on June 25, 1971 and in a letter dated June 28, 1971, Carrier stated that the previous declination was reaffirmed. A further conference was held on July 16, 1971, and on July 21, 1971, Carrier's highest designated officer again denied the appeal. Carrier contends that this appeal to this Board was not filed within nine months from the date of the decision of Carrier's highest designated appeal officer, and should, therefore, be dismissed. In this connection, Carrier contends that the date of decision by Carrier's highest designated appeal officer was May 7, 1971.


          Under authority of Awards 17977 (Dorsey), 13942 (Dorsey), 12899 (Pail), 19021 (gayea),10460 (Ables), and many others, this claim moat be dismissed. In essenc exists, it moat be complied with unless there is an express agreement entered into between the parties extending or waiving the time limit; and that a request for further discussion and/or a further discussion after declination of a claim by the highest officer on the property, does not extend time within which an appeal may be taken to this Board.


          The doctrine of stare decisia compels this Board to folow the cited Awards, which are found not to be in palpable error.


                  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 claim be dismissed.


iiD.:4: ~.vs~
                    Award Number 19579 Page 3

                    Docket Number DC-19755

                    A WAR D


        Claim dismissed.


                        NATIONAL RAILROAD ADJUSTMENT BOARD

                        By Order of Third Division


ATTEST:
        Executive Secretary


Dated at Chicago, Illinois, this 30th day cf.January 1973.