NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Locket Number CL-25405
Eckehard Muessig, Referee
(Brotherhood of Railway, Airline and Steamship Clerks,
( Freight Handlers, Express and Station Employes
PARTIES TO DISPUTE:
(The Belt Railway Company of Chicago
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood (GL-9836) that:
1. Carrier violated the effective Clerks' Agreement when, effective
December 16, 1982, it failed and refused to honor the displacement of Clerk
Edward Pollard over a junior employe to Position #513, Supervisor Switching
Revenue;
2. Carrier shall now compensate Mr. Pollard the difference between the
straight time rate of Position #513 and that of Position #530, and shall further
compensate Claimant for any overtime worked by the incumbent of Position #513;
and shall further compensate Claimant interest at the rate of one and one half
per cent (1 1/2%) per month on all monies due, commencing on December 16, 1982,
and
continuing for
so long as Claimant is denied Position #513.
OPINION OF BOARD: When the Claimant's position was abolished, he attempted
to displace another employe. However, his request was denied
by the Carrier on the basis that he did not possess "sufficient fitness and
ability" for such displacement. Thereafter, an unjust treatment investigation
was held. The Carrier continued to assert, following the investigation and on
further appeal, that the Claimant lacked sufficient fitness and ability for the
position in question. The dispute was then progressed to this Division on both
procedural and substantive grounds.
With respect to the procedural
contention, the
Organization asserts
that "Rule 34 - Unjust Treatment" conveys the same rights of appeal to a Claimant
as those provided under the disciplinary process. While there are numerous
implications of this position set forth in the record, the essential procedural
issue here turns on the sequence of the appeal process steps and the role of the
decision-making officials in them. In this regard, the same official who
originally found the Claimant not to be qualified, later testified at the hearing
which was conducted by that official's Supervisor. This Supervisor, in his role
as the Hearing Officer, then made the decision to deny the Claimant's appeal,
thereby upholding the original decision. On further appeal, the same official
who made the original decision once again found that the Claimant could not
displace another employe because, as he found in the first place, the Claimant
did not possess the necessary fitness and ability.
The Organization argues that the appeal process utilized by the Carrier
fatally deprived the Claimant of his due process rights. In support of its position,
among other things, it relies upon this Division's Award 24476. The Carrier, on
this point, argues the case before us is not one of
discipline. Consequently,
for this and other cited reasons in the record, Third Division Award 24476 is not
controlling.
Award Number 25361 Page 2
Locket Number CL-25405
While this Division has upheld the appropriateness of Carrier's officials
service in a multitude of roles, given the facts and circumstances of this dispute,
we find that this general principle has been stretched to an unreasonable degree.
"Rule 34 - Unjust Treatment" provides for: ·...the same right of investigation,
hearing appeal and representation as provided by Rules 26k"·and 31, if written
request which sets forth the employee's grievance is made to his immediate supervisor
within sixty f60) calendar days of the date of cause of compliance". Under the
essential facts herein, the original deciding official again became a part of the
appeal process when he later ruled on a decision earlier rendered by his Supervisor,
the independent review provided by the parties'-contract is plainly lacking on a
number of counts. Accordingly, while we do not easily find on technical violations,
the error here deprived the Claimant of basic due process and we sustain the
claim. However, we do not award that portion of Part 2 which claims interest.
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 violated.
A W A R D
Claim sustained in accordance with the Opinion.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest:
Nancy J.
AWr
- Execu 7ve secretary
Dated at Chicago, Illinois, this 29th day of March 1985.
CARRIER MEMBERS' DISSENT
TO
AWARD 25361 DOCKET 251+0
Referee Muessig
The majority decision is palpably erroneous and requires a Dissent.
The dispute underlying this case arose when the position of the Claimant was
abolished. In accordance with the Agreement, the Claimant notified the Carrier's
Manager of Revenue and Car Accounting (hereinafter "Manager") of his desire to displace another empl
Claimant did not possess sufficient fitness and ability. At that point, the Claimant
had two options if he wished to progress his right to displace. Under one option, he
could file a grievance claiming unjust treatment. Under this option, he would
receive an unjust treatment hearing conducted by the Assistant Controller who
would then determine whether the Manager's denial had been appropriate. If Claimant
was dissatisfied with the Assistant Controller's decision, he could appeal to the
Director of Labor Relations.
In the alternative, Claimant could file a time claim appealing from the decision
of the Manager. The appeal would be taken to the Assistant Controller and, if still
unresolved, the next appeal step would be to the Director of labor Relations.
In this case, Claimant decided to pursue both procedures, unjust treatment and
time claim, in seriatim. He initially requested an unjust treatment hearing which
was conducted by the Assistant Controller who upheld the decision of the Manager.
Under such procedure, the next appeal step would have been to the Director of Labor
Relations.
The Claimant, however, did not pursue his claim of unjust treatment. Instead,
he filed a time claim with the Manager. The time claim was denied and, pursuant to
the Agreement, was appealed to the Assistant Controller and, thereafter, to the
Director of Labor Relations. No contention has ever been made that the above procedures digressed fr
the Agreement. Indeed, it was not until two months following the final conference
Dissent to Award
25361
page
2
on the property that the Organization raised the procedural issue which the majority
has found to be determinative of this case.
The procedural issue was precipitated by Third Division Award
24476,
on this
property, which involved a discipline dispute in which the Carrier officer who had
assessed the discipline also was the first level appeal officer. The Award held that
such procedure was a violation of the due process rights of the Claimant. The
Organization seized upon that Award to raise the argument that there had been a procedural violation
Claimant's request to displace in the proceeding that led to the unjust treatment
hearing, was the same officer who denied the time claim. The Organization's position
was that the denial of the time claim constituted an appeal step in the unjust treatment proceeding
24476.
One would have assumed that to state the facts would have been sufficient to
destroy the argument's validity. Unbelievably, the majority bought it lock, stock,
and barrel; thus the necessity for this Dissent.
The Award is in error for several reasons. First, as the above facts clearly
demonstrate, the denial of the time claim by the Manager cannot, even by tortured
reasoning, be considered a step in the appeal process under the unjust treatment
provisions of the Agreement. Under the Agreement, the next appeal step following the
unjust treatment hearing by the Assistant Controller would have been to the Director
of labor Relations. The reinvolvement of the Manager was due solely to the election
of the Claimant not to pursue an appeal following the unjust treatment hearing but,
instead, to file a time claim. There is nothing in the Agreement that calls for an
appeal to the Manager following a decision by the Assistant Controller.
Second, if the above were not sufficiently onerous, the majority compounded
the error by holding that inasmuch as the denial of the time claim by the Manager
constituted an appeal step, its inclusion in the appeal process was of such magnitude
Dissent to Award 25361 Page 3
as to, ipso facto, deprive Claimant of his right to due process, relying upon
Award 24476. While the purpose of this Dissent is to comment on the Award of the
majority in this dispute, the majority's reliance upon Award 24476 requires us to
comment on that Award as well. The rationale for the holding in Award 24476 was not
that there was any provision in the Agreement or the parties past practice that required the result
process", the source of which remains shrouded in mystery. The Board in Award 24476
appeared to perceive some inequity in following the requirements of the Agreement and
past practice and was determined to remedy such perceived wrong. The fact that the
Board does not have the jurisdiction to dispense its own brand of industrial justice
was immaterial. As stated in Fourth Division Award 31+90:
"Any rights which an employee has during a discipline investigation flow
not from the Constitution, but solely from the collective bargaining agreement
negotiated under the Railway Labor Act. This has been firmly established by
both courts of law and this Board. (See Clark V. S·C L , 332 F. SuPP.380
381 (N.D. Ga., 1970); Edwards V. St.L.-S.F., 361 F.2d 946, 953 (7th Cir.
1966); Third Division Award 1567 ;; -Second Division Awards 6963, 6381 and 1821)."
The majority here, taking its cue from Award 24476, has no difficulty in finding
a failure of due process without citing any provision of the Agreement to support
its position and in the face of uncontroverted evidence of past practice that is
directly contrary to the requirements established under the Award. Indeed, the major
ity's total reliance upon what it found to be a procedural defect, found it unnecessary
even to consider whether such defect had produced any deficiency in substance. Third Di.
ision Award 19063, which held that it was not improper to have the same official assess
discipline and be the first appeal officer, is particularly instructive in this regard.
The Board stated:
"We have considered the cited Rules in the Agreement and the Awards urged
by both parties. We are unable to perceive how, in the circumstances of
this case, Claimant was dealt with unfairly. We affirm Awards 15714 and
16347 noting that it was alleged without refutation that this is the
established method of handling discipline cases on this property."
To the same effect, also see Third Division Award 20077 and 25381.
Dissent To Award
25361
Page
4
As detailed above, the Claimant's action in instituting a time claim on top of
his unjust treatment grievance served only to increase the number of steps in the
processing of his grievance. In no way did it impair any of his rights.
Finally, it is important to note that while the majority in this case relied
upon Award
24476,
it went beyond that Award in extending the non-Agreement, non-past
practice requirement of "procedural due process" to appeals under the unjust treatment provisions of
for all the reasons set forth herein, we are confident that the Award in this case
will not serve as a precedent as well.
,1A i W1 lt_z~
I GE
W. F.
EUKER
L~. ~ X;4ZZ::,Z
AWARD 25361, DOCKET CL-25405
The Carrier Member's Dissent warrants an answer to not
only what it says, but to what it ignores.
The central issue at question involved whether or not
the Claimant had sufficient fitness and ability to displace a
Junior Employe.
The decision rendered in Award 25361 clearly recognizes
the fact that:
1) Claimant had sufficient fitness and ability, and
2) Notwithstanding Claimant's qualifications for
the position, the instant case could be settled
on the basis of stare decisis in that the appeal
procedure was violated as it was in Award Nos.
24476 and 24547 involving the same Parties and
the same Rules.
The progression of events started with the initial displacement and were as follows:
1) Claimant's displacement was denied by Mr. J.
McGuire, Mgr. Rev. & Car Acct.
2) Claimant then requested an Unjust Hearing to
Mr. Ostrowoski, Asst.Controller and Mr. Mc
Guire's immediate superior.
3) The Hearing was then held at which time Mr.
McGuire appeared as a Witness against the
Claimant. Upon completion of the Hearing, Mr.
Ostrowoski reaffirmed Mr. McGuire's original
decision.
4) Pursuant to the Agreement, an appropriate Claim
for loss of earnings and appeal of Mr. McGuire's
original decision to deny Claimant's displacement
and Mr. Ostrowoski's reaffirmation of that decision was made to the proper officer to receive
such; namely, one Mr. McGuire.
Majority opinion clearly recognized that the Appellant Officer
should be an objective person not directly involved in the dispute.
Mr. McGuire could hardly be considered such in this instance:
1) He was the original Accuser; and
2) Witness against Claimant; and
3) Last but not least, to think he might overturn
his Superior's decision which reaffirmed his prior
decision is unthinkable.
Any chance for success at the first Appellant Step was nonexistent. By no stretch of the imagina
be considered as having been an Appeal. The identical issues of
-2- AWARD 25361, DOCKET CL-25405
the decision maker, acting as Appellate Officer, was ably
handled in Award No. 24476 and Award No. 24547.
The Dissent again argues that when the Claimant's displacement
was not honored, that he had two alternatives - one to ask for an
Unjust Hearing or the other - to file a monetary grievance. Their
position is an "either/or choice" which is contrary to the Agreement and historical practice on the
When the Parties adopted the Agreement, they agreed to an
Unjust Hearing Rule which provides the same protection as the Investigation Rule. The hearing was to
disputes such as this case in the quickest manner possible. If
and when the Unjust Hearing failed to resolve the matter, the
Organization, as they have historically always done, would then file
an appropriate Time Claim for failure to honor the displacement
and loss of earnings. This is the same procedure that has always
been followed in these matters as well as Investigation Hearings.
The Dissent's argument that the Organization should have merely
appealed the Unjust Hearing Decision without a request for monetary
damages would be ridiculous as it would carry no significance, if
sustained. To grieve their dissatisfaction, the Organization or
Claimant are obligated to file a grievance. When employes are
dismissed, suspended, or disqualified, it is an obligation upon the
part of the Organization to request monetary damages. To do any less
would make us remiss in our responsibilities. The Dissent's rationale
is illogical.
To further compound their error, the Minority Dissent also
-3- AWARD 25361, DOCKET CL-25405.
takes exception to Award
No.
24476 and states on Page 3, the
following:
"...the source of which remains shrouded in mystery."
Award
No.
24476 was not shrouded in mystery but based upon
a long line of Third Division Awards such as 8431 and 9832, which
have clearly stated that the same standards of fairness and due
process as set forth in Rule 27, as well as the intent of the
Railway Labor Act, require that the grievance appeal should be
reviewed by an independent officer and failure to do any less is
in violation of the Agreement.
Longtime Railroad Carrier Advocate at the National Railroad
Adjustment Board and now a Referee, Mr. Paul C. Carter, dealing
with the same issue and same property, put it well in Award No.
24547:
"We do look askance, however, when the same hearing officer
also serves as a witness since this very action pointedly
destroys the credibility of the due process system. In a
similar vein, we look askance when the first step grievance
appeals officer is also the same person who assessed the
discipline. The independent review and decision at each
successive appellate level, whether it is two or three
step appeal process, is plainly lacking when the same person
judges the discipline he initially assessed. It is a
contradiction in terms, which nullifies the hierarchal
review process."
Contrary to the Minority Dissent,Award No. 25361 is not based
upon some mystical revelation anymore than its predecessors on
the same Property were. The Dissent registers an erroneous view
to a long line of Awards rendered by this Board, just a few of
which have been cited.
-4- AWARD 25361, DOCKET CL-25405
The Dissent continues to ignore the explicit language of
the Unjust Treatment Rule 34 that states:
"An employe who considers himself unjustly
treated, otherwise than covered by these
rules, shall have the same right of investi-
ation, hearing and representation as provided
in ,Rules 26, 27, 28, 29, 30 and 31,..."
(Underlining our emphasis).
Last, but not least, the Dissent attempts to infer that a
foul was committed when the Organization, in the handling of the
dispute on the Property, wrote the Carrier with a copy of Award
No. 24476 and set forth its position. Such a statement is contrary
to the facts. The Organization wrote the Carrier with reference to
the new Award in hope it might help resolve the instant dispute.
The case was still properly being handled on the Property.
Award 25361 is correct and is in complete conformity with
the above-cited precedent Awards of the Third Division on the
Property as well as countless others. The Dissent does not
detract from the sound reasoning rendered in this Award.
William R. Miller, Labor Member
Date April 25, 1985
-5- AWARD 25361, DOCKET CL-25405
Serial No. 328
NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
INTERPRETATION N0. 1 TO AWARD N0. 25361
DOCKET N0. CL-25405
NAME OF ORGANIZATION: Brotherhood of Railway, Airline and Steamship Clerks,
Freight Handlers, Express and Station Employes
NAME OF CARRIER: The Belt Railway Company of Chicago
Award No. 25361 sustained the Claim in question. However, it denied
a portion of Part 2 of the Claim relating to interest on the monies claimed.
This Interpretation arises because the Organization contends that the
Claimant is due compensation for the difference
"...
between the rate of
Position #513, the position he sought to displace to; and Position 8530, the
position that he ultimately displaced to, commencing December 16, 1982, and
for each and every day thereafter until the Claimant is actually placed on
Position //513". In addition, the Organization seeks compensation for the
Claimant in an amount equivalent to the overtime earnings paid to the employe
the Claimant sought to displace.
With respect to these contentions, the Board notes, since it is
relevant to our Interpretation, that the portion of the Claim which we
sustained dealt with the displacement of a junior employe. Moreover, our
Interpretation is based on reasonable inferences about what would have
occurred had the Claimant been placed in Position 11513 on December 16, 1982.
Within the framework of the foregoing, we find the Carrier's arguments
persuasive. Accordingly, the Claimant is to be paid the difference between
the pay rate of Position No. 513 and whatever position he occupied for the
period December 16, 1982 to June 30, 1983, inclusive, in addition to "any
overtime worked by the incumbent of Position No. 513" during that period.
Referee Eckehard Muessig, who sat with the Division as the Neutral
member when Award No. 25361 was adopted, also participated with the Division
in making this Interpretation.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
ATTEST:
, 5
zes't
e-~
Nancy J.
90~-
Executive Secreta y
Dated at Chicago, Illinois, this 25th day of April 1986.