NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Docket Number MW-26150
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(Consolidated Rail Corporation
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" dated February 9, 1983') Repairman R. C. Greene 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-313).
2. The 'AW Warning Letter' mentioned in Part (1) hereof shall be
removed from the claimant's record."
OPINION OF BOARD: Claimant was unable to report off on February 7, 1983,
prior to the 8:00 A.M. required deadline. Claimant
maintained he was ill and had made three attempted calls. He was unable to
get through.
The Carrier issued an "Unauthorized Absence Letter" to the Claimant
for failure to reach the office and report off prior to the deadline. It is
the Carrier's position that it has complied with Rule 27, Section 1. The
Organization argues that the Carrier has violated Rule 27, Section 2 in that
the Claimant was denied a Hearing.
The merits of this instant case depend upon an interpretation of Rule
27 of the Agreement which has already been heard by this Board and decided by
Third Division Award No. 26382.
In that case by reference, as in this, the Board interprets Section 1
of Rule 27 to apply to Hearings and to require a Hearing, and a written notice
before an unfavorable mark is entered into the employee's discipline record.
As such, this_Board sustains the Organization's Claim.
FINDINGS: The Third Division of the Adjustment Board, upon the whole record
and all the evidence, finds and holds:
Thatl'~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
Award Number 26383 Page 2
Docket Number MW-26150
That the Agreement was violated.
A W A R D
Claim sustained.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest:
Nancy J. ver - Executive Secretary
Dated at Chicago, Illinois, this 25th day of June 1987.
CARRIER MEMBERS' DISSENT
TO
AWARD NOS. 26382 26383
DOCKET NOS. MW-2614950
(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 involved 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~