The Third Division consisted of the regular members and in addition Referee Nancy F. Eischen when award was rendered.
The Third Division of the Adjustment Board, upon the whole record 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.
This case involves the Carrier's alleged "failure and refusal" to furnish J. Lawrence, Jr. and his representative with a copy of the transcript of his disciplinary Investigation held on March 3, 1997 at Minneapolis, Minnesota. Of note, it is not disputed that the Claimant was exonerated of any wrong-doing in connection with the charges.
The Organization asserts that Rule 40E of the September 1, 1982 BN-BMWE Schedule Agreement mandates that in all instances of disciplinary Investigation, "the employee and the duly authorized representative shall be furnished a copy of the transcript of investigation, including all statements, reports, and information made a matter of Form 1 Award No. 36197
record." The Organization asserts that this case is "just that simple and straightforward" and should be sustained on the clear and unambiguous language of Rule 40E.
For its part, the Carrier maintains that the historical application of Rule 40E is that transcripts of Investigations are not provided unless there has been an assessment of discipline. The Carrier further maintains that the Organization has no need for the transcript unless there is disciplinary action on which to base an appeal. Specifically, the Carrier contends that Rule 40E applies only to matters "made a matter of record," and there is no record unless a transcript is prepared. Finally, the Carrier contends that in the circumstances, the Organization has shown no prejudice to the Claimant's rights.
Rule 40, as a whole, is dedicated to disciplinary trials and appeals, in text as well as in title. Specifically, Rule 40E states that:
The language of Rule 40E, noted supra, is clear and unambigous. It does not stipulate that the transcript "shall be furnished" only in cases where discipline is assessed, but rather simply states that a transcript "shall be furnished." Based upon the clear and unambiguous language of Rule 40E, this claim must be sustained.
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.
Carrier Members' Dissent to
Award 36197 (Docket MW-35415)
Referee N. F. Eischen
The on-property record established that the Claimant had not been found guilty of any violation at the March 3,1997 Investigation hearing. As such, since no discipline was issued and no notation was made on the Claimant's record there was nothing "made a matter of record." Further, it was noted in the on-property record, that, because of the outcome and because no record was made on Claimant's record, no copy of the investigative record was retained.
While the Majority has focused on one word in Rule 40E in rationalizing its decision, it has ignored all that follows the word "shall" in the Rule. Yes, a copy "...of the transcript... including all statements, reports and information made a matter of record" shall be provided to an individual. Based upon the unambiguous language of the rule, a copy of this decision, since it is the only remaining record.of the March 3, 1997 hearing, is all that is necessary and factually is all that can be provided the Claimant in this matter.
LABOR MEMBER'S RESPONSE
TO
CARRIER MEMBERS' DISSENT
TO
AWARD 36197, DOCKET MW-35415
(Referee N. F. Eischen)
If one would take the Carrier Members' Dissent at face value, then one would have to conclude that no transcript of the hearing was retained. Indeed, the Carrier asserted on the property that no record of the hearing was kept because no discipline was assessed. Despite the assertions raised on the property, miraculously under date of October 4, 2002, the General Chairman received a complete copy of the hearing transcript with exhibits attached. Hence, all of the assertions raised by the Carrier Members and the Carrier have shown to be untrue. Of course, this writer is hesitant to assert that the Carrier and its representatives were speaking untruths; however, its position can be described as disingenuous.
Finally, as the Carrier consistently does, it manages to attack the clear and unambiguous language of the Agreement. Rule 40E clearly states that:
The matter of record that the Carrier Members continue to bleat about is the record of the hearing itself, whether discipline is rendered or not. Labor Member's Response to Carrier Members' Dissent Award 36197 Page Two