NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Docket Number MS-19338
(Thomas F. Fessler
PARTIES TO DISPUTE:
(Union Pacific Railroad Company
( (South-Central District)
STATEMENT OF CLAIM: This is to serve notice, as required by the rules of
the National Railroad Adjustment Board, of my intention
to file an ex parts submission on March 29, 1971, covering an unadjusted
dispute between me and the Union Pacific Railroad Company involving the
question:
Reinstatement to position of Station Agent at PicoRivera, California.
OPINION OF BOARD: This is a discharge case involving Mr. Thomas Fessler,
formerly employed by Carrier as Agent-Telegrapher at
Pico-Rivera, California Agency. By letter dated March 12, 1968 Claimant
Fessler was notified as follows:
"Please report to the station building, Pico-Rivera, Calif.,
for formal investigation and hearing at 2:00 o'clock P.M.,
THURSDAY, March 14, 1968, on charges that you failed to
account for all moneys due R.E.A. Express during period of
May, 1967, to date of audit, February 23, 1968, at PicoRivera station, in alleged violation of Gener
Rule 700, 901, and 913 (A), and special instructions contained is Accounting Department Bulletin No.
19(B).
"The investigation and hearing will be held in conformity
with Rule 55 of the Agreement between the Union Pacific
Railroad Company and the Transportation-Communication
Employees Union, effective October 1, 1959, and you are
entitled to representation as provided in said rule.
"You may produce such witnesses in your defense as you
may desire at your own expense."
Subsequently, by letter dated March 27, 1968 Claimant received notification that the charges had bee
hearing and, therefore, he was discharged from the Carrier's service.
By letter dated June 12, 1968 Claimant, through his Organization, sought
reinstatement with benefits unimpaired but without pay. On July 31, 1968
Carrier's Superintendent responded to this request as follows:
Award Number 21408 Page 2
Docket Number MS-19338
"Mr. D. V. McDermott
District Chairman
Transportation-Communication Employees Union
291 South Main
Cedar City, Utah
Dear Sir:
Referring to your letter June 12 in which you
requested the reinstatement of former Agent-Telegrapher
T. F. Fessler.
I have no objection to Mr. Fessler~s reinstatement,
on a leniency basis, with the proviso that he will be
restricted from performing service as Agent, Ticket Clerk,
or any other assignment which would involve handling
Company funds.
Mr. Fessler has today been advised that he is reinstated on the above basis.
Yours very truly,
/s/ R.D. Smith"
Thereafter, Claimant through his Organization rejected this offer and
tendered a counter offer as follows:
"Dear Sir:
Re your letter July 31 file PR-52391 regarding reinstatement of Mr. T. F. Fessler, former Agent-
As stated in your letter, Mr. Fessler has been informed
of his re-instatement and of the leniency basis on which the
re-instatement is offered.
Mr. Fessler has written me in this regard. He feels
that after as many years in good standing as he had, and
with the time 'out-of-service' taken into consideration,
that to be re-instated on a leniency, basis would be very
detrimental to his work record. He has asked that this
organization prevail upon the company to allow him the
priveledge of resigning from the service of the company
immediately upon his being re-instated with a clear work
record.
Award Number 21408 Page 3
Docket Number MS-19338
I feel it was not the intention of the company, in
taking disciplinary action against Mr. Fessler, to literally
'black-ball' him from employment elsewhere, however, with a
leniency re-instatement, this is literally the effect it will
have. It is with this in mind, that I request you again take
this case under consideration with the above provisions in
mind.
Yours very truly,
/s/ D. V. McDermott
District Chaiiman TCU
291 South Main"
Carrier acceded to this request and Claimant was permitted to tender his
resignation back-dated to March 12, 1968 and effective March 26, 1968 the
day before he was discharged. The resignation was accepted by Carrier
with the notation "Services satisfactory - record clear."
No claim alleging violation of the controlling Agreement ever
was filed or processed on the property by or on behalf of Claimant. Notwithstanding the resignation
of any claim of Rules violation in the handling of his discharge, Claimant
on February 27, 1971 served notice of his intention to file an Ex Parte
Submission to the Board seeking reinstatement to his former post as
Agent-Telegrapher.
Our review of this record leaves no doubt that the instant claim
was not handled in accordance with the provisions of the collective bargaining agreement. On the con
machinery on the property and filed his claim directly with our Board.
Such handling is not consistent with the requirements of Section 3 First
(i) of the Railway Labor Act and Circular No. 1 of the National Railroad
Adjustment Board, The claim is therefore, barred for consideration by
the Division, and will be dismissed.
FINDINGS: The Third Division of the Adjustment Board, after giving the
parties to this dispute due notice of hearing thereon, and
upon the whole record and all the evidence, finds and holds:
That the Carrier and the Petitioner involved in this dispute
are respectively Carrier and Petitioner 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
Award Number 21408
Docket Number MS-19338
That the claim is barred.
Claim dismissed.
ATTEST:
a
&' daza"e
Executive Secretary
Dated at Chicago, Illinois, this 18th day of February 1977.
Page 4
A W A R D
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
i
Esc
GErZ~
P