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.
The Claimant was removed from service on November 23 to December 1,1996 as a result of an incident which occurred on November 21, 1996. On December 2, 1996, the Claimant signed a waiver letter accepting a 30-day suspension with no right of appeal. The Carrier contends that Egan was removed from service during the period at issue out of safety concerns and that these are not elements of the suspension. The Carrier continues by claiming that the provisions of Rule 30 stand-alone and are not modified by the provisions of Rule 19 as alleged by the Organization.
The Organization contends that the settlement under Rule 30 is intended to be allinclusive meaning t through December 1, 1996. The Organization further contends the Carrier did not have cause to withhold the Claimant from his job.
The Carrier claims that the waiver signed by the Claimant constitutes an entire settlement with no right of appeal. The Carrier contends that the time off prior to the waiver period can be characterized as "lost time" or "non-time." The Carrier closed by contending it's right to withhold the Claimant from service because "his retention in service could be detrimental to himself, another person or the Corporation."
The record supports the position of the Carrier that it had the right to withhold the Claimant from service. The resolution of this question however does not impact upon the final determination in this case.
In support of its position, the Organization relies upon Third Division Award 30071, dealing with a situation where an employee was given a 30-day suspension, to which the Carrier applied time held out of service. The determination was that an employee assessed a suspension under Rule 19(t), will not serve any time off unless another offense is committed within the succeeding six-month period. The decision concluded by stating Form 1 Award No. 35500
that the "Carrier may not include actual days out of service without pay in a suspension assessed under the provisions of rule 19(f)."
The Carrier relies upon the following cases: Third Division Awards 29590, 31776, 32987 and 32988. The first Award dealt with an appeal of a ten-day suspension, the right of the Carrier to withhold an employee from service, and whether the Carrier gave the Claimant five days notice of the charge against her. It does not deal with the issue before us in this case.
Award 31776 dealt with a situation wherein claimants knowingly signed for a 30- day suspension including time held out of service. This case serves to demonstrate an alternative approach to Rule 30. In the instant case, the parties did not include the time off in the settlement Agreement, leading to the conclusion that the Claimant did not intend to accept both a 30-day suspension and lose pay for the time off.
Awards 32987 and 32988 concluded that investigation time off could be unpaid, as a portion of a disciplinary suspension. These cases do not deal with a fact situation as presented here.
Rules 19 and 30 are closely related and must be construed together. The parties did not reference the Investigation time off in the settlement and the Claimant is accordingly entitled to pay for such period.
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.
Third Division Award No. 35500
Referee Donald W. Cohen
Carrier Member Dissent
Labor Member's Concurring Opinion
And Response To Carrier Member's Dissent
To Third Division Award No. 35500
Docket Nos. TD-34497
(Referee Donald W. Cohen)
Rule 19 is the Discipline Rule that provides "a Train Dispatcher shall not be disciplined or dismissed without a fair and impartial investigation", "Except as provided in Rule 30".
Rule 30 is an "Alternative to Investigations" that provides "An employee may be disciplined without an investigation when the employee involved and the authorized official of the Company agree in writing to the responsibility of the employee and the discipline to be imposed."
In the case decided by this Award, the Claimant was removed and held from service for seven days until an agreement was reached in accordance with Rule 30. In this Rule 30 waiver agreement, the Claimant accepted a "30 days suspension ...deferred under Rule 19, Paragraph F". The Carrier refused to compensate the Claimant for the seven days lost as a result of being held out of service even though the waiver agreement provided that the suspension would be deferred in accordance with Rule 19 (f). Hence the claim for the seven days lost by the Claimant.
Clearly, seven days lost pay is discipline regardless of what the Carrier calls it. And, when the Carrier imposed this seven-day suspension without a "fair and impartial investigation" under Rule 19 it violated the Agreement, unless it was the result of a Rule 30 waiver agreement, which it was not.
The Carrier Member, in an attempt to find support for the Carrier's position concerning Rules 19 and 30, writes in the Dissent: "The meaning of Third Division Award 30071 is well established and confirmed .... The Majority was not free to ignore the precedent established by Third Division Award Nos. 30071, 32987 and 32988...". This is quite a departure from the Carrier's opinion of Award 30071 found in its submission to the Board in this case, which was:
The Majority was correct in following the "precedent established" by Award 30071 in sustaining this claim. There should no longer be any confusion as to what the established precedent is.