NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Docket Number MW-26708
James R. Johnson, Referee
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(Chicago, Milwaukee, St. Paul and
( Pacific Railroad Company
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood
that:
(1) The dismissal of Mr. K. T. Lilly on June 29, 1984 and reaffirmed
on July 30, 1984 was unwarranted, without just and sufficient cause and in
violation of the Agreement (System File Ci114-84/D2659-1).
(2) The claimant shall be reinstated with seniority and all rights
unimpaired and he shall be compensated for all wage loss suffered."
OPINION OF BOARD: Claimant was employed by the Carrier as a Trackman for
approximately four years before his discharge. Under the
Agreement in effect between these parties, discipline is assessed and an
employee has a right to an Investigation, if he requests that one be held.
On June 29, 1984, the Claimant was terminated from the employment of
the Carrier for:
1st. Threatening to strike your immediate supervisor with a spike maul. June 29th.
2nd. Being rude and very insubordinate / June 29
/ and Harassing Mr. Dan Flaten after being
fired from the Company by myself and Mr.
Flaten, Assistant Foreman at 2:45 p.m.
3rd. Late for work on 29th. You and the people
you ride with drove to the job site. This
also was a violation due to the fact that the
Company is liable for you during working hours
and there _is transportation provided by the
Company.
The Claimant requested an Investigation, as provided in the Agreement, and the Investigation was
scheduled time and place. The Organization requested a postponement when the
Claimant failed to appear, and a recess was called to call the Claimant's
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Docket Number MW-26708
home. After being advised that Claimant had left the previous evening to attend the Investigatio
Hearing was conducted in absentia, and the discharge was upheld.
The Organization objects to the Carrier's refusal to postpone the
Investigation, and argues that the Hearing was unfair because the Claimant was
not present. The Carrier counters that it declined to postpone the Hearing,
because it had transported several witnesses from Iowa, and Claimant made no
timely request for a postponement. Further, it states that Claimant has not
explained his absence, or given a reason for a postponement at any time during
the handling of the case on the property. It concludes that it was appropriate to hold the Investiga
The Board agrees with the Carrier's position. Claimant gave no reason for a postponement, or exp
before or since the Hearing, and there is no obligation upon the Carrier to
delay or incur additional expense or inconvenience under such circumstances.
We find that it was proper to hold the Hearing in absentia.
With respect to the merits of the case, there is substantial evidence and testimony in the recor
charged. The offense of threatening and swinging a spike maul at one's Supervisor is, alone, more th
will deny the Claim.
FINDINGS: The Third Division of the Adjustment Board, after giving the parties
to this dispute due notice of hearing thereon, and upon the whole
record and all the evidence, finds and holds:
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.
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Docket Number MW-26708
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest:
r
Nancy J. e - Executive Secretary
Dated at Chicago, Illinois this 8th day of June 1987.