NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Docket Number MW-25215
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(Elgin, Joliet and Eastern Railway Company
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood that:
(1) The dismissal of Welding Foreman R. Ruvalcaba for alleged 'theft
of one (1) oxygen and two (2) acetylene tanks on or about December 15, 1981' was
on the basis of unproven charges and in violation of the Agreement (System File
142-293/Case VM-29-82/SAC-7-82).
(2) The claimant shall be reinstated with seniority unimpaired, his
record shall be cleared of the charge leveled against him and he shall be compensated
for all wage loss suffered."
OPINION OF BOARD: Prior to the occurrence giving rise to the claim herein,
claimant was employed by the Carrier as a welding foreman.
On January 28, 1982, he was notified, certified mail - return receipt requested:
"Please report for a formal hearing to be held Wednesday, February
3, 1982 at 9:30 A.M. in the Conference Room, Annex Building, Kirk
Yard, Gary, Indiana.
This hearing is being convened to determine your responsibility and
involvement, if any, in connection with the theft of one (1) oxygen
and two (2) acetylene tank (sic) on or about December 15, 1981.
You may bring witnesses and/or be represented at this hearing as
provided by our Agreement."
The hearing was postponed and finally held on April 22, 1982. The claimant
did not appear at the April 22, 1982, hearing, but was represented by the Local
Chairman of the Organization. Following the hearing, claimant was notified on
April 30, 1982, of his dismissal from Carrier's service. A copy of the transcript
of the hearing conducted on April 22, 1982, had been made a part of the record.
We have carefully reviewed the transcript of the hearing and find
substantial evidence in support of the charge against the claimant. We have noted
the objections raised by the claimant's representative during the course of the
investigation, or hearing, and find none of them of sufficient significance to
invalidate the proceedings. This Division has issued numerous awards upholding
the admissibility of written statements in disciplinary proceedings without the
writer being present. There was no credible evidence that at the time of the hearing
claimant was disabled to such an extent as to prevent his attendance. We have
previously upheld the conducting of a disciplinary hearing in absentia. See recent
Awards Nos. 24550 and 24546.
Award Number 24764 Page 2
Docket Number MW-25215
Based upon the record, there is no proper basis for the Board to interfere
with the discipline imposed by the Carrier. Claimant's length of service, about
twenty-five years, is emphasized by the Petitioner. However, we do not consider
length of service as a valid defense in a case such as the one here involved.
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.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
ATTEST:. /
Nancy J. e r - Executive Secretary
Dated at Chicago, Illinois, this 13th day of April, 1984.
