NATIONAL RAlLROAD ADJUS'lMENT BOARD
THIRD DIVISION
A.Robert Lowry,Referee
Award Number 23588
Docket Number CL-23766
(Brotherhood of Railway,Airline and Steamship Clerks, (Freight Handlers,Express and Station mployes
PARTIES TO DISPU'l!E: (
.. (The Denver and Rio Grande Western Railroad Company
STATEMENT OF CLADi:Claim of the System Coumittee of the Brotherhood
(GL-9352) that:
Carrier acted in an arbitrary and unjust manner when it dis missed Mr. Louis R.Failla f'ran its service ettective September 14,1979 as the result of an investigation conducted on September 10,1979.
Carrier sh.all now be required to restore Mr. Failla to service with all rights and privileges unimi:s,ired and compensate him for all time lost beginning September 21 1979.
OPINION OF BOARD: The Claimant,Louis R.Failla, employed as a Clerk Messenger, was charged by the OUTier on September 6, 1979,with pos
session and use of marijuam While on du.ty on September 21 1979,and ordered
to be present for formal investigation at 9:00 AM,Monday ,September 10, 1979. ClainBnt on the date of receipt of the notice,September 6th, made written re quest tor postponement of the hearing until September 17, 1979,the request
contained no reason for postponement. On the same date, September 6th,
Carrier denied the request and sent it by certified mail to Cl&inant•s last known address.The record shows Claimant receipted :f'or delivery of the cer tified letter on September 14, 1979. The formal investigation was held,as scheduled.,on Mooday September 101 1979,without the presence ot Claimant
or his representative. The record shows the hearing officer delaying the in vestigation ten minutes while a search of the building was made for the Claim ant. It then proceeded with the hearing., trying Claimant in absentia. Carrier fown Claimant guilty of the charges and on September 14, 1979,fornBlly dis missed him from service.
Rule 24 {c) of the Agreement ree.ds as follows : "At a reasomble time prior to the investigation the
employe is entitled to be apprised. of the precise charges and shall have reasonable opportunity to secure the presence of necessary w1tnesses. 0
Award Number 23588 Docket Number CL-23766
Page 2
Claimant was charged on September 6th, a 'lb.ursday. He made written request for postponement OD. the same date, Carrier rejected the request on the same date, and the investigation was conducted on Monday, the 10th,in absentia. Claimant had just four days, including Saturday and Sunday, to prep:,.re for the 1nvestigation and secure Yitnesses.The rule clearly obligates Carrier to accord Claimant "reasonable opportunity to secure the presence of necessary witnesses." The carrier,especially the hear1Il8 officer,shou1d have been extra zealous in guardiDg against
the abrid8ement of any of the procedural rights written into their Acol..
lective bargaining agreement.The Ce.J:Tier,since it has within its
control the basic judicial due process nacb.inery,must exert every ef..
:fort to assure Claimant t'ull opportunity to defe:r::d himselt' asainst charges which can seriously e.:f'fect his future ability to earn a living . The :f'e.ct that Claimant ma.de a written request far postponement was suf ficient evidence he was not abandoDillg ar waiving his contractual right to a hearing,and the carrier,especially the heariil8 officer,should have resolved the question of postponement 1n favar of Claimant in order to give him an opportunity to prepare his defense &Dd.1 therefore, comply with the intent of the rule by ho1sl.iDg the investigation When Claimant coul.d be present and afforded the right to de:t'e:r::d himself.
This reasoning is supported by Referee H.Paymo:r::d Cluster in Third Division Award 7173 When he said:
''In this case, Where there was a serious doubt that Clainant intended to waive his right to a hearing,Cm-rier, should have resolved this doubt in his favor,rather than close the door on Claimant's rights despite the uncertainty as to the reason far his absence,acd the presence of his representative demanding a postponement of the hearing."
Referee Harold M .Weston further supports., this theory in his Fourth Division
Award 1851, reading as follows: .
"In our opinion,these proceedings constitute an abuse of due process. Claimnt vas given f'our days notice, including Saturday and Sunday,of a hearing that put his position in Jeopardy.While the matter of notice may not have been squarely raised on the property a:r::d we are mald.ng no deter
mination as to the adequacy at that notice,the circumstances
are compel.ling that Claimant should have been given the re quested two day postponement. A man•s position was at stake
am it is not a valid defense,1n this factual situation,
that Ce.J:Tier's witnesses should be detained if the hearing were delayed.In a discharge case,every effort should be DBde to make certain that the emplo•a rights to represen tation and to prepare his defense are respected."
A.Ward Number 23588
Docket Number c:c.-23766
Page 3
'lllis Board,after careful study of the entire record and applicable e.wards, finds and holds that Carrier tailed to accord Claimant a fair and 1m,. partial hearing required by the agreement. 'l!le claim will be sustained.
The carrier shall reinstate Claimant with all the righta un1mpaired am com.
pensate him tor time lost,excluding outside earnings.
FINDOOS: 'lb.e 'l!lird Division of the Adjusiment Boe.rd, upon the whole
record and all the evidence,f ims and holds:
That the parties waived oral hearing;
1bat the CluTier aDd the Employee involved in this dispute are respectively Car.ner aDd Employes within the meaning of the Railway labor Act, as approved June 21, 1934;
That this Division at the Adjus1Dent Boe.rd has jurisdiction over the dispute involved herein; and
'lhat the Agr-eem.ent was violated.
Claim sustainedo
NATIONAL RAlLROAD ADJtE'lMENT BOARD
By Order ot Third Division
ATI!EST: Acting Executive Secretary
National :Railroad AdJustment Board
Dated at Chicago, . Illinois, this loth day of March 1982.
DISSE?fl' OF CA.'.t'ffiIER MEMBERS
TO
AWARD 23588 (CL-23766)
(Referee Lowry )
D111ent to this Award ia necessary because the Majority has again
ignored the cozxtract and the facts ot record 1J1 order to dis-pense personsl preterence.
At Page 2 of the Avard the Majority states :
"Claimant had just tour days, including Saturday acd
. SUnday, to prepare tor the investigation and secure witnesses. The rule clee.rly obligates Car:-ier to accord Claimant 'reasonable opportunity to secu-.-e the presence of necessary vitnesaea. ' The.Carrier, es. pecially the hearing o!f ieer, s 1ould have been extra zealous n guard against the abridgement of any of the procedural rights written irrto their collective bargaining agreement ••••and the Carrier, especially the hearing of f ice, should have resolved the question o't J)Ostponement in f avor of Claimmit in order to give him an opportunity to prepare h11 de.tense anr!, there tore, cola!)ly with the intent of the r,u,e by holding the investigation ,men Claimant could be present and afforded the right to def end himself .
The tact• ot record substantiate that :
l. Claiment acknowledged receipt of the Hearing Notice at 9:41A.M. , September 6, 1979.
2. On the afternoon of September 6, 19i9, C1aimant pre• seuted at Carrier's of fices a note requesting a post ponement ot the hearing scheduled for september 10,1979.
3. Carrier,on September 6, 1979,:'eJ'lied to Claimant's re
quest by a certi!ied special deliver-/ letter, c.enying
his request as there vu no reason given tor such rei:iuest .
The Poat Ottice attempted delivery of the letter on September 7, 1979, but was unable to do so.
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DISSER? 01 CARRIER MEMBERS TO
AWABD 23S88 (CL-23766)
It vaa Sl.lbsequently determined that Claimant did not return to hi reidence, and did not advise anyone ot vhere he might be reached.
While the Majority ponti!ieates about being "extra zealoua" concerning "procedural right,", it simply 1gmrea that the procedural detect relied upon by the Majority in thia ease was a situation ot the Claimant 's own creation. Carrier denied Claimant no procedural right .
The MaJority further baldly asserts thst the "question ot postponement"
ehould have been reeolved "in raver ot Claimant", but does not explain why that should be so. No reason vaa ever given 011 the property tor the need tor the postponement, and absent .a reaeon, there is no mandate that the Carrier must grant tJZ!Y and every postponet..ent request.
In Avard 21 696 • Wallace, it vaa clearly stated:
"It baa been held that the Carrier cannot be made an insurer of the receipt of this type notice. Where bona :tide et orta are made to deliver the notice but
the l'a!iure of delivery is due to Claimazrt 's conduct,
then it must be concluded the rule requirements have been mat. Avard 13757 (Cobum) . The Employee had the re8P)n•1bility not to avoid service ot the notice.
Ava.rd 1500T (Woli') .''
Third D1Yiai,n Avard 17691 •McGovern:
"A• ve said in Avard No. 13941 'There muat be a termina- tion to an adversary proceedina and the parties have the reaponsibility ot protection of their rea-pective inter- ests. The situation herein presented ia analogous to a party tailing to appear at a trial in a civil action set for a day certain; vhereu-s,on the Court enters judgea:ent on the pl.eedings or ex parte evidence. We :find, 1n the
light o'! the :t'ncts o:t record, Carrier d id not violate the
Agreement in proceeding to decision in absence ot Claimant .'"
I
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DISsmr OF <:AERIER M!MDRS 'l'O
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AWARD 23588 (CL-23766).
.. . .
Liu Avud 23, ta dispute involved the proven ot an 1ntox:Lcazxt - mar1Juazia - while on duty 8114 uz:u:ler pq. Such matten are serious, and. aust be ctuq conaidered. HowevU", like the clispos1t1au made 1D .Award 23427, •w:h matters have beu ignored 1D th1a case. We stron&].y clieaeate4 in that case
am ft do 90 iD thi8 case.
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