Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 29147
THIRD DIVISION Docket No. CL-29545
92-3-90-3-504
The Third Division consisted of the regular members and in
addition Referee Elizabeth C. Wesman when award was rendered.
(Transportation Communications International Union
PARTIES TO DISPUTE:
(Chicago and North Western Transportation Company
STATEMENT OF CLAIM: "Claim of the System Committee of the Organization
(GL-10506) that:
1. Carrier violated the effective Agreement when following an investigation on August 11, 1989,
the Carrier for a period of five (5) days commencing with August 17, 1989, and
2. Carrier shall now compensate Ms. Harris for all time lost as a
result of this suspension and shall clear her record of the charge placed
against her."
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.
At the time of the incident precipitating this claim, Claimant was
assigned as a Clerk on Position 324 at Carrier's Proviso, Illinois facility.
During the course of her tour of duty on August 3, 1989, at about 5:30 P.M.,
two cars that had arrived from the Belt Railway Company were erroneously classified to Track 31 inst
humped to Track 31. At approximately 9:18 P.M. Claimant noticed her error and
corrected the computer record and waybill notation for the cars to indicate
they should be classified to Track 28. The misclassification of the cars was
not discovered until August 4, 1989, by a third trick clerk. The misclassification resulted in the c
Form 1 Award
No. 29147
Page
2
Docket
No. CL-29545
92-3-90-3-504
By letter of August
4, 1989,
Claimant was notified by Carrier to
appear for an Investigation into the following charge:
"Your responsibility in connection with your failure
to properly perform your duties while working position
324
(TCMC) Clerk on August
3, 1989,
commencing
at
3:59
p.m. Specifically, your failure to properly
handle cars DWC
605138
and TRSD
4462."
Following a Hearing on August 11,
1989,
the Claimant was issued a discipline
notice dated August
17, 1989,
suspending her from service for five
(5)
actual
days, effective that date.
At the outset, the Organization raises two procedural objections:
that the charges were imprecise, in violation of Rule
21
of the Agreement
between the Parties; and that the Claimant was denied a fair Hearing and "due
process" because the Assistant Vice President, Station 6 Customer Services,
issued the notice of Investigation, served as Hearing Officer, issued the
discipline notice, and declined the Organization's appeal of that discipline.
With respect to the first objection, the charge as stated in the
notice of Hearing "provided sufficient notice to permit the accused to prepare
[her] defense" (Third Division Awards
20238, 21228,
Second Division Award
8034).
Further, Claimant has demonstrated in the Transcript of the Hearing
that she had ample understanding of the charge. Moreover, she testified that
she had been afforded the opportunity to have whatever witnesses she desired
in her defense (Fourth Division Award
3167).
Accordingly, there we find
nothing on the record before us to support the Organization's contention that
Carrier violated Rule
21
regarding specificity of the charge against the Claimant.
We turn next to the Organization's procedural objection that the
Claimant's due process rights were violated by the multiple roles assumed by
the Assistant Vice President. Absent contractual language to the contrary,
the mixing of roles by a Carrier Officer does not per se constitute an unfair
Investigation and Hearing. By electing to allow one person to wear multiple
"hats" during the charging, investigatory, and appeals process, however,
Carrier increases the risk of reversal and invites close scrutiny of its procedures. Second Division
5467.
There is no evidence on the record
before us to show that the Claimant actually was deprived of a fair and impartial Investigation.
It is the position of the Organization that, even absent the alleged
procedural violations, Carrier's assessment of discipline is excessive under
the circumstances. The Organization points out that Claimant corrected the
error once she noticed it, and that the cars were subsequently delayed because
Carrier failed to follow through on the correction. Accordingly, the Organization maintains that Cla
compounded in its effects by the Carrier.
Form 1 Award No. 29147
Page 3 Docket No. CL-29545
92-3-90-3-504
Carrier counters that it disciplined Claimant specifically for
failure to carry out her duties properly, in particular when she failed to
notify her Supervisors once she had discovered the misassignment of the cars
in question. It also points out that the Claimant admitted at the Hearing
that she misassigned the cars and corrected the errors without notifying her
Supervisors that the cars had been misassigned. Finally, Carrier notes that
it followed its own published discipline policy when it assessed the five day
suspension. The Claimant had previously been placed on the discipline system
and had received a letter of review regarding a prior "failure to follow instructions."
In light of the Claimant's admission that she did, in fact, misassign
the cars in question and failed to notify her Supervisor's following her computer correction of that
persuasion with respect to the charges against her. Moreover, in view of
Claimant's prior discipline record, we do not find the assessed discipline to
be excessive, arbitrary or discriminatory. Accordingly, we will not disturb
Carrier's assessment of discipline in this case.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest:
ancy J. v -Executive Secretary
Dated at Chicago, Illinois, this 28th day of February 1992.