NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Locket Number CL-25524
Nicholas Duda, Jr., Referee
(Brotherhood of Railway, Airline and Steamship Clerks,
(Freight Handlers, Express and Station Employes
PARTIES TO DISPUTE:
(Chicago, Milwaukee, St. Paul and Pacific Railroad Company
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood (GL-9849)
that:
1) Carrier violated the Clerks' Rules Agreement at St. Paul,
Minnesota when it charged, held investigation and assessed discipline of
termination to Employe P. F. Bowman on October 8, 1982.
2) Carrier shall now be required to clear Employe P. F. Bowman's
record of charges, investigation and subsequent discipline of termination,
return him to his former position and compensate him for all lost earnings
caused by his termination.
OPINION OF BOARD: Claimant had been employed for seven years by the Carrier,
most recently as a Yard Clerk. On October 1, 1982, the
Carrier sent Claimant an envelope by regular mail containing the following
letter:
"Formal investigation will be held at 10:30 A.M., on
Tuesday, October 5, 1982, in the Assistant Superintendent's
Office at St. Paul, Minnesota, for the purpose of developing
the facts and circumstances in connection with your alleged
failure to properly perform your duties as a yard clerk
at South Minneapolis on September 18 and September 23,
1982, involving mishandling of 'Code 2' cards and 'Code 5'
cards those dates, of which your Supervising officer had
knowledge of these alleged incidents on September 24, 1982.
If you intend to have representation as provided for
in schedule, rules and agreements, it will be your obligation and responsibility to see that such re
is present on the date scheduled. There will be no exceptions.
You are hereby instructed to be present at the above
time, date and place. Any reasonable request for a postponement must be made a sufficient time prior
of investigation.*
The investigation was held on October 5, 1982, but neither Claimant
nor his representative were present. On October 8, 1982, the Carrier sent a
letter notifying Claimant that he was terminated effective October 9, 1982.
Award Number 25664 Page 2
Docket Number CL-25524
In Third Division Award 13179, the functions of the Board were
stated as follows:
In discipline cases, the Board sits as an appellate forum. As
such, our function is confined to determine whether:
(1) Claimant was afforded a fair and impartial hearing;
(2) The finding of guilty as charged is supported by substantial
evidence; and
(3) The discipline imposed is reasonable.
The parties agreed to Rule 22 which provides, among other things,
that an employee:
"...shall not be disciplined or dismissed without investigation and
prior thereto the employe will be notified in writing of the
precise charge... [and] shall have reasonable opportunity to secure
the presence of representatives and/or necessary witnesses."
In the Railroad Industry, mailing a notice to an Employe has long
been recognized as constructive delivery provided the notice was sent
properly addressed and postmarked in adequate time. Here the Carrier sent
the letter in an envelope addressed to Claimant with an incorrect zip code.
Because of the improper zip code, the envelope went to Deer Lodge, Montana,
rather than to Claimant in Minneapolis, Minnesota. Sometime later, (the
record does not show exactly when), the incorrectly addressed envelope was
returned to the Carrier. The record does show that after the hearing, the
Carrier inserted the misaddressed envelope and its enclosed letter into
another envelope along with their dismissal letter which Carrier then mailed
to Claimants correct address. In other words, the Carrier did not send the
letter to the proper address until after the hearing had been held.
The Carrier is entitled to a presumption of the delivery, constructive delivery, only where i
original envelope was not properly addressed. The letter within that
envelope could not be, and was not delivered to Claimant. The second
envelope was entitled to the presumption of delivery, but it was posted after
the hearing and was the termination letter therefore inadequate to satisfy
Rule 22.
The Carrier failed to provide the Employe with notice in writing of
the precise charge prior to the investigation; in addition, Claimant did not
have a reasonable opportunity to secure the presence of his representatives
and/or necessary witnesses.
Award Number 25664 Page 3
Docket Number CL-25524
This Board does not believe the Carrier intentionally misaddressed
the envelope, however, its innocence of that intent does not excuse its
negligence or justify disregard of Claimant's rights under Rule 22.
Accordingly, this Board finds that Claimant did not receive a fair
and impartial hearing. For that reason, the claim must be sustained.
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 disupte 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.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest:
Nancy J er - Executive Secretary
Dated at Chicago, Illinois, this 28th day of October 1985.