Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 36327
Docket No. MW-36404
02-3-00-3-657
The Third Division consisted
of
the regular members and in addition Referee
Nancy F. Eischen when award was rendered.
(Brotherhood
of
Maintenance
of
Way Employes
PARTIES TO DISPUTE:
(New Orleans Public Belt Railroad
STATEMENT OF CLAIM:
"Claim
of
the System Committee
of
the Brotherhood that:
(1) The discipline [forty-five (45) day suspension with thirty (30) day
actual suspension beginning June 12, 1999 through and including
July 11, 1999 and fifteen (15) days held in overhead suspension]
imposed upon Mr. C. Wilkerson, Jr. on July 9, 1999 for the alleged
violation
of
the NOPB Safety and General Rules for All Employees
1.1, 1.6 and 1.15 while working as a flagman on June 9, 1999 was
arbitrary, capricious, on the basis
of
unproven charges and in
violation
of
the Agreement (System File MW-99-10-NOPB).
(2) As a consequence
of
the violation referred to in Part (1) above,
Claimant C. Wilkerson, Jr. shall now have the aforesaid charges
and discipline removed from his record, reinstated to his former
position with all rights and benefits restored and he shall be
compensated for all lost wages."
FINDINGS:
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.
Parties to said dispute were given due notice
of
hearing thereon.
Form 1 Award No. 36327
Page 2 Docket No. MW-36404
02-3-00-3-657
The Claimant had been employed by the Carrier for approximately 19 years, and
was working as a Flagman under the supervision of B&B Foreman J. Estay, when this
dispute arose.
'On June 11, 1999, the Carrier sent the Claimant the following correspondence:
"On June 9, 1999, you were assigned to perform flagging duties on US
Highway 90 under the Huey P. Long Bridge in New Orleans. These duties
require you to flag automobile traffic in this area to protect such traffic
from the possibility of harm as the result of the work being performed by
the NOPB Bridge and Building Forces.
It has been reported that at approximately 9:45 a.m., without obtaining
authorization, you left your post on Highway 90 at which you were
assigned to flag traffic and proceeded to the shop under the pretense of
securing someone to relieve you from your duties. By leaving your post,
you left Highway 90 vehicular traffic without protection from the work
being performed overhead at this location.
Due to the fact that you had communications in the form of a Company
radio which you could have contacted your supervisor, there was no reason
to warrant or justify you leaving your assigned post and leaving the
identified traffic unprotected. You are being charged with violation of the
NOPB Safety and General Rules 1.1, 1.6 and 1.15.
In view of the above, you are hereby withheld from service effective
immediately, until such time as you, your Organization and the NOPB can
establish a date and time for an investigation on the above charges."
On June 17, 1999, the Carrier notified the Organization, and the Claimant, that
the formal Investigation had been scheduled for June 23,1999. By letter dated June 22,
1999, the District Chairman wrote the Carrier requesting that two witnesses, J. Estay
and R. Jemison, be present at the June 23 Investigation, at the Carrier's expense. The
Carrier denied the request, relying upon the language set forth in Rule 16, wherein it
states: "Employees shall have the right to have present, at their expense, such witnesses
as they desire."
The Investigation commenced as scheduled, and by letter dated July 9,1999, the
Carrier informed the Claimant that he had been found guilty as charged, and further
informed the Claimant:
"You are hereby disciplined in the form of a forty-five (45) days'
suspension from the service of the NOPB Railway. You are assessed an
immediate suspension of thirty (30) days from the service of the NOPB.
Form 1 Award No. 36327
Page 3 Docket No. MW-36404
02-3-00-3-657
This discipline of thirty (30) days will commence on June 12,1999, and run
through and including July 11, 1999. The remaining fifteen (15) days'
suspension will be held in overhead suspension pending any further rules
violation(s) by you within the next twelve months or until July 11, 2000.
Should you violate any rule during this period of time, you will be required
to serve these fifteen (15) days in addition to any discipline you might
receive for the additional rule violation(s).
As you will remember, you currently have a five (5) days overhead
suspension held in abeyance from an incident on March 10,1999, wherein
you admitted to rule violations in connection with operating the Kershaw
Tie Crane that resulted in the destruction of the signal box and stand of
eastbound Signal J3.0. As a result of the discipline issued in connection
with the incident on June 9, 1999, you are hereby required to serve these
five (5) days held in abeyance. This five (5) days' suspension will
commence on July 12,1999, and run through and including July 16,1999."
The Organization submitted a claim, dated July 21,1999, in which it alleged that
the Claimant was not "properly" charged. Specifically, the General Chairman noted
that the charge letter indicated that the Huey P. Long Bridge was located in New
Orleans, Louisiana, when, in fact, it is located in Metairie, Louisiana.
With respect to the procedural aspects of the case, the General Chairman alleged
that the charge letter was not precise because it did not satisfy "where, when and why."
The General Chairman further alleged that the conducting officer "allowed hearsay to
be entered into the Investigation, used leading questions to question the Carrier
witnesses, and, harassed and intimidated the Claimant's representatives."
On October 8, 1999, the Carrier notified the General Chairman that the Notice
of Appeal, dated July 21, 1999, did not comply with the time limit provisions of Rule
16(g), and was considered expired under the time limits. According to the Carrier, the
appeal had to be received on or before July 29, 1999, and although the letter was dated
July 21, 1999, the Carrier did not receive same until August 28, 1999, some 30 days
subsequent to the expiration of the time limit for such notice.
Notwithstanding the above, the Carrier maintained that the Claimant was guilty
of violating Carrier Rules when he absented himself from his assigned duties without
permission, and left the vehicular traffic on Highway 90 at the Huey P. Long Bridge
unprotected while work was being performed on the railroad tracks overhead.
In a December 2, 1999 letter, the General Chairman informed the Carrier that
it was his "intent" to send the notice of appeal in a timely manner, but did not dispute
the late arrival of same. Rather, the General Chairman blamed the delay on an
"insufficient address" and a "problem with the mail."
Form 1 Award No. 36327
Page 4 Docket No. MW-36404
02-3-00-3-657
Rule 16 - DISCIPLINE AND INVESTIGATION states, in pertinent part:
"(g) An employee's right to appeal is hereby established,
if
notice
of
the
appeal is given the official rendering the decision within twenty (20)
calendar days. The employee or his representative will have the
right to appeal in succession up to and including the highest official
designated by the management to handle such cases."
District Chairman McCall notified the Carrier by letter dated July 21 that he did
not agree with the Carrier's July 9, 1999 decision to discipline the Claimant and
indicated that a claim and/or appeal would be presented on the Claimant's behalf.
Although the Notice was dated July 21, 1999, the Carrier did not receive same until
August 28,1999. This is 50 days after the July 9,1999 decision rendered by the Carrier,
and 30 days past the time limits set forth in Rule 16(g)
of
the Agreement. The District
Chairman admitted that he improperly addressed the Notice
of
Appeal to the Carrier,
and argued that he "intended" to send the Notice in a timely manner. Regardless, it is
not disputed that the Carrier did not receive the appeal until August 28, 1999.
Rule 16 is clear and unambiguous in its meaning, and in these circumstances, the
Organization's Notice
of
Appeal was not submitted/received within the time parameters
set forth in Rule 16. Therefore, this claim must be dismissed.
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 26th day
of
December 2002.