Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 31773
Docket No. .MS-3152.1
96-3-93-3-494
The Third Division consisted of the regular members and in addition Referee
Dana E. Eischen when award was rendered.
(A. Y. Fuller
_PARTIES TO DISPUTE:
(CSX Transportation, Inc. (former Louisville
( and Nashville Railroad Company)
STATEMENT OF CLAIM:
"Claim on behalf of A. Y. Fuller for compensation including all straight
time pay lost, overtime pay lost and all guarantee pay lost, $20,000.00 for
damages and expenses, reversal of the decision of guilt, and reinstatement.
This claim is based on the fact that the Carrier violated the 'Agreement',
45 USC Section 441, and the tenets established by past arbitration
hearings, when the Carrier:
1. Illegally retaliated against me because I caused the FRA to become
aware that the Carrier was in violation [ofl FRA safety regulations
and/or because I raised the issue to the Carrier's officers that the
Carrier was in violation of FRA safety regulations.
2. Breached specific terms contained in Rule 55 of the 'Agreement'.
3. Denied my right to a fair hearing in numerous ways."
FINDINGS:
The Third Division of the Adjustment Board upon the whole record and all the
evidence, finds that:
Form 1 Award No. 31773
Page 2 Docket No. `IS-31524
96-3-93-3-494
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.
Parties to said dispute were given due notice of hearing thereon.
This case is an appeal of the discipline assessed to a former Signal Maintainer for
allegedly failing to maintain his territory up to FRA and CSXT rules and regulations.
On Februarv 10, 1992, Claimant was advised of the following:
"You are hereby directed to attend a formal investigation to be conducted
in the Conference Room, 1590 Marietta Blvd., Atlanta, GA. commencing
at 0900 hours on February 20, 1992.
The purpose
of
this investigation is to develop the facts, discover the cause
and place responsibility in connection to the recent Code 1 violation and
the discrepancies found by FRA inspectors on February 1, 4, 5 and 6,
1992.
You are hereby charged with possible violation of S. R. Jc I Rules 1.=23.
1.225, and 1.236 in the CSX Transportation Signal Rules & Instructions
Manual.
You are hereby directed to attend with fuB rest under the Federal Hours
of
Service Law. You may have such witnesses to attend that have
knowledge
of
the matters under investigation. You may also have
representation
if you so
desire in accordance with the provisions
of
your
working agreement."
At the request
of
the Organization, the Hearing was postponed on two occasions.
and was ultimately held on March 18, 19 and 20, 1992. Claimant admitted that all
violations cited by the FRA were under his jurisdiction and his responsibility. In fact.
certain evidence showed that Claimant had recently inspected the locations where the
defects were found and reported "no problem." Other evidence indicated that some
of
the defects had existed for extended periods
of
time.
Form 1 Award No. 31773
Page 3 Docket No. MS-3152.1
96-3-93-3-19.1
The Carrier determined that Claimant, and fellow Signal Maintainers Brooks.
Burnam. Collins, Stonecipher, Anderson and Bass, were culpable. and advised Claimant
of these findings and of the discipline imposed in the following:
"Ample and convincing evidence clearly reveals that you did fail to
reasonably maintain the equipment assigned to you. The facts adduced at
the investigation proved conclusively that you were guilty as charged.
Your personal record reveals that the current unsatisfactory performance
and lack of willingness to properly perform duties falling within the area
of your responsibility is a continuation of your less than satisfactory work
history. Your disregard for the Rules and the numerous suspensions
assessed to you as a result have not served to effectuate a change for the
better.
As stated above, testimony given during the investigation reveals that you
are guilty as charged. This testimony and your past record reveal that you
have ignored all efforts by Carrier to have you improve in your work
habits and performance. You are therefore dismissed from service
effective end of workday, Monday, April 13, 1992. Please turn in all keys,
rule books and other Company property in your possession to Signal
Supervisor Griffis."
The discipline of the other employees was appealed by the Organization, resulting
in denial Third Division Award 31772. Claimant chose to appeal his discipline without
the assistance of the Organization. Claimant's lengthy appeal was denied up to and
including Carrier's highest designated officer. Without conferencing the matter.
however, Claimant filed his Notice of Intent with the Third Division, dated August 26,
1993. The Carrier responded with a letter taking exceptions to alleged de novo evidence
in Claimant's Submission and asserting jurisdictional objections to alleged improper
appeal to arbitration:
"In regard to your belated contention that the Carrier retaliated against
you in violation of some provision of 45 USC Section 441, you maintain
that Mr. B.M. Wilson had previously informed the Carrier of this same
law, therefore, it can only be assumed that you are now claiming that you
blew the whistle on the Carrier, and as a result, are protected in some way.
Form 1 Award No. 31773
Page 4 Docket No. NIS-31524
96-3-93-3-494
You also infer that this was brought to the Cart :2r's attention in N our
letters of June 9 and October 6, 1992, however, such simply is not the case.
Your inclusion of this unclear argument in your August 8, 1993 letter
comes for the first time some 17 months after the hearing. There has been
no discipline assessed in this case based on any information other than the
documented evidence which clearly demonstrates that you were fully
responsible for the citations issued by the FRA because you were aware of
those violations and did nothing to correct those violations, a responsibility
for which you were compensated.
The FRSA only prohibits discrimination against employees because such
employees file complaints, institutes or causes to be instituted any
proceeding, or testifies in any proceedings under the FRSA. That is. this
protection is specific to the individual who engages in the protected
activity. There is no cause of action under the statute wherebv an
employee can claim protection because of another employee engaged in
protected activity.
WV k .t
As for your filing notice with Third Division Executive Secretary Nancy
J. Dever, please be advised that your election to present this dispute to the
appropriate Division of the National Railroad Adjustment Board violates
the mandates of Section 3, First (1) of the Railway Labor Act. 45 fSC
Section 153, First (1) that a conference be held on the property with
respect to the claim. Circular No. 1 of the Third Division of the Railroad
Adjustment Board clearly states that the Board lacks jurisdiction to
consider any claims which have not been subject to a conference on the
property."
By letter dated September 12, 1993 Claimant expressed willingness to discuss
the dispute in conference. The Carrier responded that Claimant was free to request a
conference at any time prior to petitioning the Board for adjutsicadon; but since he had
chosen to advance the dispute to the Board without the mandated conference, the issue
was rendered moot
Form 1 Award No. 31773
Page 5 Docket No. MS-31524
96-3-93-3-494
Without commenting further on the issues of culpability and disciplinary penalty
alreadv discussed in Third Division Award 31772, the Board must dismiss this claim for
lack of jurisdiction. Claimant's failure to conference his claim on the property prior to
advancing the dispute to the Board is fatal to his appeal. Circular No. 1 and 45 USC
Section 3, First (1) are unrelenting in their requirements of procedural propriety in
appeals to this Board and failure to abide by their strictures leaves the Board without
jurisdiction or authority to decide the merits of this claim.
AWARD
Claim dismissed.
ORDER
This Board, after consideration of the dispute identified above, hereby orders that
an award favorable to the Claimant(s) not be made.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Dated at Chicago, Illinois, this 20th day of November 1996.