NATIONAL. RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Docket Number CL-26274
(Brotherhood of Railway, Airline and Steamship Clerks,
( Freight Handlers, Express and Station Employes
PARTIES 7U DISPUTE:
(Missouri Pacific Railroad Canpany
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood (GL-9986)
that:
1. Carrier violated the agreement between the parties, in
particular Rule 18 (k), when it denied written request of Clerk Charlotte
Garrett for an unjust treatment hearing (Carrier's File 280-1287).
2. Carrier shall now be required to compensate Clerk Garrett for
eight (8) hours pay beginning February 26, 1984, and continuing each day
thereafter until she is given the unjust treatment hearing requested."
OPINION OF BOARD: At the outset it must be stated that on the property the
Claim before the Board was limited to a contention that the
Claimant was improperly denied an Unjust Treatment Hearing pursuant to Rule
18(k) and the only requested remedy was that the Hearing be granted. Accordingly, the Board must lim
matter handled between the Parties on the property.
On February 26, 1984, the Claimant made a request for an Unjust
Treatment Hearing Under Rule 18(k). The basis of her request was an accusation that a Management emp
had improperly removed her from the Extra Board. The Carrier denied the
request and a protest was lodged, denied, and appealed ultimately to the Board.
Rule 18(k) states:
"An employe who considers himself unjustly treated
otherwise than covered by these rules shall have
the same right of hearing and appeal as herein
provided, if written request thereof is made to
his immediate supervisor within seven (7) days of
the cause for complaint.
It is understood, however, that an employe's disqualification from a position (including rejecti
of application for a vacancy or denial of request
to displace a junior employe) is subject to this
rule."
Award Number 26226 Page 2
Docket Number CL-26274
It is the opinion of the Board that there is no basis for the
Carrier having denied the Claimant's request. The fact that the Carrier made
a unilateral investigation and determination of what it viewed to be the
merits of the accusation, is essentially irrelevant. The Claimant plainly and
clearly is entitled to a Hearing to air her complaint. Therefore, the Carrier
is directed to grant the Claimant's request for an 18(k) Hearing.
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 Elnployes 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 er - Executive Secretary
Dated at Chicago, Illinois, this 15th day of January 1987.
Serial No. 331
NATIONLL
RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
INTERPRETATION N0. 1 TO AWARD N0. 26226
DOCKET NO.
CL-26274
NAME OF ORGANIZATION: Brotherhood of Railway, Airline and Steamship Clerks
Freight Handlers, Express and Station Employes
NAME OF CARRIER: Missouri Pacific Railroad Company
On April 6, 1987, the Organization filed a request seeking an
Interpretation of the Board's Award 26226 (Docket CL-26274) issued January 15,
1987.
It is instructive to draw attention to the following portion of the
Award:
"It is the opinion of the Board that there is no
basis for the Carrier having denied the Claimant's
request. The fact that the Carrier made a
unilateral investigation and determination of
what it viewed to be the merits of the accusation, is essentially irrelevant. The Claimant
plainly and clearly is entitled to a hearing to
air her complaint. Therefore, the Carrier is
directed to grant the Claimant's request for an
18(k) hearing."
Basically, the question presented for Interpretation is whether the Award
contemplated that the Carrier render a decision concerning the outcome of the
hearing which the record reflects was ultimately held March 2, 1987.
The answer to the question is obviously--yes. It is patently clear
that part and parcel of the requirement to conduct a hearing is to render a
decision. Constructively, a hearing cannot be considered completed until
a decision is rendered. The purpose of a hearing is to make a finding not
merely to elicit testimony. Thus, if a decision has not been rendered as of
the date of this Interpretation, the Carrier is ordered to do so.
Referee Gil Vernon, who sat with the Division as the Neutral member
when Award No. 26226 was adopted, also participated with the Division in making this Interpretation.
Page 2 Serial No. 331
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
ATTEST:
Nancy J.Aer - Executive Secretary
Dated at Chicago, Illinois, this 27th day of October 1987.