TThe Third Division of the Adjustment Board, upon the whale retard and all the evidence, finds that:
The carrier or carriers and the employee or employees involved in this dispute are respectively carrier and employee 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.
Prior to his disciplinary disqualification, Claimant was regularly assigned as a foreman at Carrier's terminal facility in Newport News, Virginia. On December 20, 1990, following an extensive inspection of the tracks at the Newport News terminal, Form 1 Award No. 30492
Carrier's inspector noted many defects in the tracks. By letter of December 28, 1990, Claimant was notified as follows:
After several postponements, an Investigation was held on August 13, 1991. Following the Investigation, Claimant was informed by letter of August 23, 1991, that he had been found "guilty as charged", and that the discipline assessed was loss of his Foreman and Assistant Foreman rights. That discipline was appealed by the Organization on behalf of Claimant by letter of September 18, 1991. The appeal was denied and the claim was subsequently progressed up to and including the highest Carrier officer authorized to handle such matters. Following a conference on the property on December 2, 1991, the issue remained unresolved.
The Organization has raised a procedural objection concerning the statement of charges contained in Carrier's December 28, 1990 letter to Claimant. Pertinent to its objection is Rule 21(b) of the Agreement between the Parties which reads:
It is the position of the organization that the charges as written were vague. It maintains that although Claimant's representative presented a "generic" defense of Claimant's actions at the hearing, the lack of specific allegations or specific dates severely hampered his defense. The Organization notes that the principle that discipline charges cannot be vague but must be specific, exact and precise, is well established. In support of its position, the organization points to the Third Division Award 25068, which reads in pertinent part as follows: Form 1 Award No. 311492
It is apparent from the imprecision of the charges leveled against Claimant in Carrier's letter of December 28, 1990, that the above-cited Award is directly on point. Carrier clearly failed to enunciate at the outset the specific infractions with which Claimant was charged, and the dates upon which those infractions allegedly incurred. Thus, Claimant and his representative were prevented by Carrier from mounting anything approaching an adequate defense in Claimant's behalf. In light of this fatal procedural flaw, the Board cannot reach the merits of the case and the claim is sustained as presented.
This Board, after consideration of the dispute identified above, hereby orders that an award favorable to the Claimant(s) be made. The Carrier is ordered to make the Award effective on or before 30 days following the postmark date the Award is transmitted to the parties.
in this case, the Hoard was presented with circumstances involving the disqualification of a Track Foreman on =*--ie basis of his obvious inability, or unwillingness, to properly maintain his assigned territory according to approved standards, standards with which he openly acknowledged familiarity. It was further proven during the Hearing that the Claimant had received, on at least two separate occasions, copies of the Carrier's Engineering Department Book of Track Safety Standards.
This notwithstanding, and for reasons known only to the author of this Award, the Majority chose to overlook the voluminous testimony as to the Claimant's lack of qualification, testimony which was provided by multiple witnesses, and ruled that:
The applicable Agreement Rule stipulates that the charged employee must be presented with Advice of Cause, in writing,
In this regard, and in response to a similar allegation by another Organization involving the very same Agreement Rule, Referee Eckehard Muessig found in Award 24 of Public Law Board No. 4698, copy of which was provided within the record:
That such was true in the instant case is clearly indicated by the detailed defense presented at the .Hearing. However, the Majority apparently relied upon only that part of the proceedings wherein the Claimant's representative enunciated repetitive objections to charges which, by their very nature, are CARRIER MEMBERS' DISSENT TO THIRD DIVISION AWARD NO. 30492 DOCKET NO. MW-30856 (REFEREE WEST) page 2
comprised of a number of deviations to standard work practices, occurring and accumulating to create a general state of disrepair over a period of time.
For these reasons, this Award is palpably erroneous anc cannot be considered to have any precedential force or effect.
LABOR MEMBER'S RESPONSE
TO
CARRIER MEMBERS' DISSENT
TO
AWARD 30492, DOCKET MW-30856
(Referee Wesman)
The Dissent to this award is nothing more than a rehashing of the Carrier's position which was considered by the Board and rejected. Specific exception is taken, however., to the Carrier Members' attempt to portray this award as supportive of the charges against the Claimant. Such a portrayal is contrary to the specific language of the award, which clearly states:
The foregoing makes it crystal clear that the Board sustained the organization's procedural objection to the charges as a threshhold matter and the merits of the allegations against the Claimant were not considered. Hence, the Board obviously found the charge contained in the Carrier's Advice of Cause so vague as to preclude any determination of the Claimant's culpability in relation thereto and the Carrier Members' contention that a charge against the Claimant was proven at the hearing is not endorsed by the Majority. The Carrier Members' attempt to enter the conclusions to which the Carrier arrived after the hearing as dicta within their Dissent does nothing to support a charge which was not properly made or to Labor Member's Response
