Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 29006
THIRD DIVISION Docket No. CL-29202
91-3-90-3-67
The Third Division consisted of the regular members and in
addition Referee Gil Vernon when award was rendered.
(Transportation Communications International Union
PARTIES TO DISPUTE:
(Grand Trunk Western Railroad Company
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood
(GL-10415) that:
(1) Carrier violated the Working Agreement, particularly Rules 8 and
34, among others, when it disqualified Mr. F. L. Walters from the Rate Analyst
position on November 4, 1988, without just and sufficient cause and refused to
grant his request for a Hearing to investigate the matter.
(2) Carrier shall now be required to compensate Mr. Walters for the
difference in pay between the Rate Analyst position ($122.78 per day) and
the Rate Clerk position ($111.84 per day), which he now holds, or any other
lower rated position that he may have held subsequent to his disqualification,
from November 4, 1988 and each subsequent date until such time as he is reinstated to the position o
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.
On September 26, 1988, the Claimant acquired a Rate Analyst position in the Marketing Department
Michigan, by the exercise of seniority. On November 3, 1988, the Claimant was
advised he was disqualified from the position.
On November 8, 1988, the Local Chairman requested an Unjust Treatment
Hearing under Rule 34 and filed a claim for the difference in wages between
the Rate Analyst position and the position to which the Claimant returned.
The Carrier denied both requests.
Form 1 Award
No.
29006
Page 2 Docket
No.
CL-29202
91-3-90-3-67
It is the opinion of the Board that the portion of the claim
demanding an Unjust Treatment Hearing must be sustained. Rule 34 provides:
"An employee who considers himself unjustly treated,
otherwise than covered by these rules shall have the
same right of investigation, appeal and representation as provided Rule 26, 27, 28, 31 and 32, if
written request which sets forth employee's complaint
is made to his immediate superior within sixty (60)
days of cause of complaint."
There simply is no justification for not granting the request for a
Hearing. The Carrier argued unpersuasively that Rule 8 provided an opportunity for a Hearing, and th
The Carrier misconstrues the nature of the Hearing of Rule 8(d). It states:
"When it is definitely determined, through hearing if
desired, that the employee cannot qualify, he may be
removed before the expiration of thirty (30) working
days."
Obviously, there is not an opportunity for the Claimant, but for the
Carrier, to hold a Hearing to remove an employee from a position prior to 30
days.
The Claimant is entitled to a Hearing. The claim for time lost
cannot be ruled on until the evidence is arrived at that Hearing. The claim
for lost time can be refiled upon the conclusion of that Hearing.
A W A R D
Claim sustained in accordance with the Findings.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest:
,~Z.-MQ0E
Nancy ver·- Executive Secretary
Dated at Chicago, Illinois, this 24th day of September 1991.