Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 27728
THIRD DIVISION Docket No. CL-28304
89-3-88-3-75
The Third Division consisted of the regular members and in
addition Referee Paul C. Carter when award was rendered.
(Transportation Communications International Union
PARTIES TO DISPUTE:
(The Atchison, Topeka and Santa Fe Railway Company
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood
(GL-10240) that:
(a) Carrier violated the Agreement at Topeka, Kansas by improperly
removing Kenneth G. Etzel from its service on April 2, 1987, and
(b) Kenneth G. Etzel shall now be restored to Carrier's service with
all rights unimpaired and with pay for all time lost beginning April 3, 1987,
forward."
FINDINGS:
The Third Division of the Adjustment Board upon the whole record and
all the evidence, finds that:
The carrier or carriers and the employe or employes involved in this
dispute are respectively carrier and employes within the meaning of the
Railway Labor Act as approved June 21, 1934.
This Division of the Adjustment Board has jurisdiction over the
dispute involved herein.
Parties to said dispute waived right of appearance at hearing thereon.
Prior to the occurrence giving rise to the dispute herein, Claimant,
with a seniority date of October 5, 1955, was the regularly assigned occupant
of Lead Accounts Receiving Clerk position, Topeka, Kansas.
The record shows that on February 14, 1987, Claimant, while a patient
at Topeka Memorial Hospital, was served with two letters written by Carrier's
Manager-Disbursement Accounting. One letter dated February 13, 1987, informed
Claimant that he was being withheld from service effective immediately, and
the second letter instructed him to report for a formal investigation to be
held on March 3, 1987, concerning the possible violation of Rules 2, 6, 13, 14
and 15 of Form 2626 Standard, Carrier's General Rules for the Guidance of
Employes, in connection with Claimant's actions in failing to protect his
assignment on Friday, February 13, 1987.
At the request of the Division Chairman of the Petitioning Organization, the investigation was p
Form 1 Award
No.
27728
Page 2 Docket
No.
CL-28304
89-3-88-3-75
The investigation was conducted on April 2, 1987. Claimant was not
present. The Division Chairman of the Organization was present at the beginning of the investigation
investigation or to participate in the investigation as a representative of
Claimant, the conducting officer ruling that the Division Chairman had to have
verbal or written authority from the Claimant personally to represent him in
the investigation. The ruling of the conducting officer was objected to by
the Division Chairman. Following the investigation, Claimant was notified of
his dismissal from service on April 7, 1987.
Rule 24(a) of the applicable Agreement provides in part:
"At such investigation the employe may be assisted
by his duly accredited representative or one or
more other employes of his craft, only one of whom
shall be permitted to interrogate witnesses."
We interpret the term "duly accredited representative" as used in
Rule 24(a) to mean the accredited representative of the collective bargaining
unit representing the craft on Carrier's property (Second Division Award
11124). The Board has also held that an employee's right to representation in
on-property disciplinary hearings arises only from the provisions of the collective bargaining Agree
and Second Division Award 11124.)
Under the provisions of Rule 24(a) of the applicable Agreement, the
Division Chairman of the Organization had a right to be present at and to
participate in the investigation of April 2, 1987, without further verbal or
written authority from the Claimant. The record shows in correspondence with
the Claimant prior to the investigation, the Division Chairman was recognized
as Claimant's "representative."
The Board finds that the investigation of April 2, 1987, was not
conducted in accordance with the provisions of the applicable Agreement. Any
discipline resulting from such investigation cannot be upheld. In this connection, see Third Divisio
We will sustain the claim to the extent that Claimant be restored to
service with seniority and other rights unimpaired, and that he be compensated
for time lost from April 7, 1987, to the date restored to service on the basis
of the average number of days worked per month for the one-year period preceding his dismissal from
arrived at on the basis stated because of Claimant's absentee record.
Form 1 Award No. 27728
Page 3 Docket No. CL-28304
89-3-88-3-75
A W A R D
Claim sustained in accordance with the Findings.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest:
Nancy J r - Executive Secretary
Dated at Chicago, Illinois, this 2nd day of March 1989.