PARTIES TO DISPUTE:
NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Marty E. Zusman, Referee
(Brotherhood of Maintenance of Way Employes
(Consolidated Rail Corporation
Award Number 26382
Docket Number MW-26149
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood that:
1. The Carrier violated the Agreement when it disciplined (reprimand
- 'AW Warning Letter' for October 25, 1982) Mr. J. F. Buxton without agreement
in writing between him, his union representative and the Carrier's authorized
official and/or without benefit of a hearing as stipulated in Section 2(a) of
Agreement Rule 27 (System Docket CR-314/MW-27-83).
2. The 'AW Warning Letter' mentioned in Part (1) hereof shall be
removed from the Claimant's record."
OPINION OF BOARD: There is no dispute in the record on the essential facts.
Claimant called to report off from duty at 8:34 A. M. on
October 25, 1982. His tour of duty was to begin at 7:00 A.M. Shop policy was
that employees were to call prior to 8:00 A.M. if they wished to report off.
The Claimant argued that his call was made as soon as possible in compliance
with Rule 28(a). The Carrier issued an "Unauthorized Absence Letter" which
went into the Claimant's file.
The Organization advanced its Claim taking exception to the imposed
discipline. It argued that under Rule 27, Section 2, an employee could only
be reprimanded if there was a Hearing or in its absence, a waiver. Since
there had been neither a Hearing, nor a waiver, the discipline could not stand.
The Carrier denied that Rule 27, Section 2 prohibited its actions.
It argued that it had Rule support from Rule 27, Section 1 (a), which permits
the issuance of the reprimand without a Hearing. It argued that it had acted
properly and within the Rules.
The Rules herein disputed state
"Rule 27. Section
in pertinent part:
1. Hearings
(a) Except as provided in Section 2 of this
Rule, employees shall not be suspended nor dismissed from service without a fair and impartial
hearing nor will an unfavorable mark be placed upon
their discipline record without written notice
thereof.
Award Number 26382 Page 2
Docket Number MW-26149
Rule 27. Section 2. Alternative to hearings.
(a) An employee may be disciplined by reprimand or suspension without a hearing, when the
involved employee, his union representative and the
authorized official of the Company agree, in writing, to the responsibility of the employee and the
discipline to be imposed.
(b) Discipline imposed in accordance with
paragraph (a) of this Section is final with no
right of appeal."
In the record of this case, the Claimant was issued an "unfavorable
mark" against his record without a Hearing. That "Unauthorized Absence
Letter" the Carrier asserts is in full compliance with Rule 27, Section 1, in
that it is neither a suspension, nor a dismissal which would require a Hearing. It was required by t
mark be placed upon their discipline record without written notice thereof."
The Carrier's major argument in support of its position is in its letter of
November 8, 1983. That letter listed numerous Rules negotiators may have been
aware of and noted that the new Rule differed in two ways. First, previous
Rules required a Hearing prior to any discipline, whereas Rule 27 required a
Hearing only for suspension and dismissal. Second, there is no restriction on
issuance of an "unfavorable mark" except that of providing a written notice.
As such, the Carrier has compiled with the Rule.
The primary function of this Board is to interpret the written
Agreement of the parties. We do not read as clear probative evidence such
intent from the Carrier's November 8, 1983, letter. The record is devoid of
any past practice establishing the meaning of the provision.
Rule 27, Sections 1 and 2 are clearly interrelated in contract construction. As such, they must
intent of the parties. Section 1 pertains explicitly to "Hearings" as clearly
and expressly written into the Agreement. It is ambiguous only with regard to
reprimands. Section 2 provides and was written for "Alternatives to Hearings." A reprimand is clearl
be provided without a Hearing if agreed by the parties and, as per part (b),
as final without right of appeal.
An "Unauthorized Absence Letter" cannot be viewed as other than a
reprimand and an unfavorable mark. As such, it follows that Section 1 cannot
be construed as to permit a reprimand without a Hearing, as that is the
meaning and intent of Section 2. There would be no reason for Section 1 to
provide no right to a Hearing when reprimanded (within a section designated to
Hearings) and then to further provide in Section 2 an alternative whereby
employees waive their right to a Hearing for a reprimand.
Award Number 26382 Page 3
Docket Number MW-26149
This Board rejects the Rule construction advanced by the Carrier
which would allow the Carrier to issue written reprimands into the employee's
discipline file without the right of a Hearing. Reprimands are clearly included in Section 1, "Heari
deny the right of the Carrier to discipline employees who violate important
Rules. However, employees, under Rule 27, have the right to a Hearing to adduce the proper facts and
a part of their permanent disciplinary record. This Board sustains the Claim.
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.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
i
Attest:
Nancy J. Dover - Executive Secretary
Dated at Chicago, Illinois, this 25th day of June 1987.
CARRIER MEMBERS' DISSENT
TO__-
AWARD _NOS. 26382,- 26383
DOCKET NOS. MW ~, MW-26150
(Referee Zusman)
The Board majority has erred in their interpretation of Rule 27.
The Board majority has seriously violated the well settled
principle that the Adjustment Board does not make new agreements for
the parties, nor insert or delete words under the guise of construing
ambiguous provisions. (Third Division Award Nos. 20276, 21221).
While Rule 27, Sections 1 and 2 are clearly interrelated, the
contract is most specific in that Section 2 is an exception to the
hearing requirement of Section 1. Section 2 only provides that the
required Section 1 hearing may be waived when the parties agree on the
employee's responsibility and the discipline to be assessed.
Thus, Section 2 can only become invol-:ed after the employee is
notified to appear for a hearing under Section 1. In the case at
hand, the employee was not ordered to appear for a hearing because
there was no intent to suspend or dismiss him for his dereliction.
Section 1 is clear that a hearing is required only if the employee may
be subject to suspension or dismissal. There is simply no requirement
in Section 1 to hold a hearing when an unfavorable mark is to be
placed on the employee's discipline record. The only restriction is
that such a mark cannot be made without written notice thereof to the
employee. Consequently, even if the "Unauthorized Absence Letter"
issued to the claimant could be considered as an unfavorable mark on
his discipline record, under no circumstances would such action
require a hearing.
Dissent to Award Nos. 26382, 26383
Page 2
A vigorous dissent is required because of the erroneous
interpretation placed on Rule 27 by the majority that this rule grants
the right to a hearing before an unfavorable mark becomes a permanent
part of a discipline record. They have done violence to the language
and construction of the rule and the clear intent of the negotiators.
For the above reasons, we do, therefore, vigorously dissent.
4Z.,4- ;e
R"
M. C. Lesnik
P. V. Varga
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