NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Docket Number CL-20195
(Brotherhood of Railway, Airline and Steamship
( Clerks, Freight Handlers, Express and
( Station Employes
PARTIES TO DISPUTE:
(George P. Baker,-Richard C. Bond, and Jervis Langdon, Jr.,
( Trustees of the Property of Penn Central Transportation
( Company, Debtor
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood (GL-7292)
that:
(a) The Carrier violated the Rules Agreement, effective February 1,
1968, particularly Rule 6-A-1, when it assessed discipline of dismissal on
E. R. Draper, Crew Dispatcher, Colliawood Yard, Cleveland, Ohio, Western
Region.
(b) Claimsat
E,
R. Draper's record be cleared of the charges brought
against him on March 9, 1972.
(c) Claimant
E.
R. Draper be restored to service with seniority and
all other rights unimpaired, and be compensated for wage loss sustained during
the period out of service, plus interest at
6%,
per annum compounded daily.
OPINION OF. BOARD: Claimant, a regularly scheduled crew dispatcher an the 7:00
a.m. to 3·00 p.m, shift at Carrier's Calliawrood Yard, was
held out of service on March 8, 1972 and dismissed from service effective March
27, 1972 following an investigative hearing into an occurrence of March 5, 1972.
The essential facts out of which the instant claim arose are not in serious dispute.
On Sunday, March 5, 1972, Claimant reported for his regularly scheduled
assignment at 7:00 a.m. la addition to his regular assignment he was scheduled
also to work the second trick from 3:00 P.m. to 11:00 p.m. By his own admission,
Claimant was under the influence of an alcoholic beverage while on duty an the
day in question. Unrefuted testimony of the other crew dispatcher an duty March
5, 1972 shows that Claimant when he reported for the first trick exuded an alcoholic-arcma, was-unab
assignment until 11:30 a.m. Moreover, Claimant was in possession of two revolvers which he admitted
3:00 and 11:00 p.m. This occurrence was reported to the Penn Central Police
Department whose officers investigated the incident.
Claimant subsequently was held out of service and served with a
Notice of Trial or Investigation to be held on March 13, 1972 in connection
with the following:
i
Award Number 20331 Page 2
Docket Number CL-20195
"Failure to properly perform your duties as Crew Dispatcher
on job G-23 on Sunday, March 5, 1972 whereby you failed to
conduct yourself in such a manner as not to bring discredit
upon the Company, acting with hostility and disregard for
Company interest and consumed and had in your possession
alcoholic beverage while on duty as Crew Dispatcher."
The record shows that Claimant attended the investigation on
March 13, 1972 and was accompanied by a representative of the Organization,
Petitioner herein. At the hearing, Claimant asserted the adequacy of the
notice and opportunity to be heard, and forthwith stated on the record that
he wished to "plead no contest" to the specifications listed in the Notice
of Trial or Investigation. After affirmatively admitting the details in
connection with the discharge of firearms and influence of alcohol occurrence
on march 5, 1972, Claimant through his representative urged Carrier to consider his prior good servi
On March 27, 1972 Claimant was advised of his dismissal from service
for the offenses occurring March 5, 1972. Subsequent appeals to Carrier for
change in the discipline assessed were denied and the claim ultimately was
appealed to our Hoard.
Petitioner contends that Claimant was effectively denied procedural
due process on the grounds that the Notice of Trial or Investigation was confusing and imprecise and
"trial" at its outset and later correctly fabled an "investigation" by the
hearing officer. Moreover, Petitioner maintains that even if arguendo the
investigative hearing was procedurally sound and fairly conducted the assessment of discharge in thi
discretion by Carrier.
Carrier on the other hand urges that the record shows adequate notice,
procedural regularity and full compliance with due process. Moreover, Carrier
points out that Claimant has admitted on the record serious infractions of
rules regulating safe and proper conduct while on duty. In these circumstances
Carrier maintains that its decision to discharge Claimant can not be construed
as an unreasonable exercise of its undoubted authority to discipline employes
for offenses while on duty.
Careful, analysis of the record reveals that the Notice was sufficiently explicit to advise Clai
that his conduct was the focus of investigative inquiry. There is nothing
in the record to suggest that Claimant was in any meaner misled or prejudiced
in his defense by the form of notice. In our judgment the Notice complies
with the requirements of Rule 6-A-1 of the Agreement between the parties that
an employe be given "written notice in advance of the investigation of the
exact offense charged°.
Award Number 20331 Page 3
Docket Number
CL-20195
Nor can Claimant find comfort in the Petitioner's allegation of
procedural irregularity incident to the hearing officer's initial denomination
of the hearing on the property as a "trial". The record shows that almost
immediately upon entering the prior reference in the record, the hearing
officer corrected himself and the record retrospectively by properly captioning that hearing as an "
difference between a "trial" and an "investigation" and that the proper procedure on the property is
to the substance of the instant proceedings the Petitioner here attacks, we
find that aside from the initial mislabeling the hearing was conducted as a
fair and impartial investigation, consistent with the requirements of the
Agreement.
Petitioner urges that the ultimate penalty of dismissal was unreasonably excessive and that a le
We have noted Claimant's apparently unblemished record prior to the instant
offense. However, the record shows that Carrier's findings are supported by
substantial evidence including Claimantas admissions; and that none of Claimaat!s procedural or subs
and considering the nature of the offenses we cannot say that Carrier acted
arbitrarily, unreasonably or capriciously in assessing discharge. Therefore
we find no valid basis for substituting our judgment for the disciplinary
action taken by Carrier and the claim must be denied. See Awards
12438,
12738, 13674, 15574, 19433
et al.
FILINGS: 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 Number 20331 page
4
Docket Number CL-20195
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
' By Order of Third Division
ATTEST: l~V i
Executive Secretary
Dated at Chicago, Illinois, this 31st day of July, 1974.