Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD

THIRD DIVISION

Award No. 43145 Docket No. MS-43827 18-3-NRAB-00003-160654

The Third Division consisted of the regular members and in addition Referee Amedeo Greco when award was rendered.

(Matthew Linkswiler PARTIES TO DISPUTE: (

(CSX Transportation, Inc.

STATEMENT OF CLAIM:

"The Carrier's dismissal of Claimant Matthew Linkswiler for the alleged violation of CSXT Operating Rules 100.1, 103.7, 104.3, and 106.3, CSX Safety Rule GS-1; the CSX Code of Ethics, and the CSX Firearm/Weapon Policy was on the basis of unproven charges, arbitrary, excessive, and in violation of the Agreement (System File D21001014/2014-166797).

As a consequence of the violations referred to above, Claimant Matthew Linkswiler shall receive the remedy prescribed in Rule 25, Section 4 of the Agreement."

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.

Petitioner Matthew Linkswiler was terminated on April 30, 2014. He appealed his dismissal to a Public Law Board which sustained his termination, (PLB-7529).

His Statement of Claim again asks that his termination be overturned.

The Carrier states that the Public Law Board's decision is final and binding and represented the Petitioner's decision to either go that route or to file a grievance with the National Railroad Adjustment Board, ("NRAB"), and that he cannot do both.

The Carrier maintains that he waived his right to seek review by the NRAB pursuant to Section 6 of the PLB-7529 agreement which states:

"An employee who is dissatisfied with a discipline decision shall have the right for a period of thirty (30) days from the effective date of the discipline to election to: (1) handle the dispute through normal procedures under the applicable working agreement, or (2) submit the decision directly to the Board established by this agreement for expedited handling. Election of either option waives all right to the other. If option (2) is elected, the employee must give written notification thereof to both the Carrier and Organization members of the Board within the above-mentioned thirty (30) day period. Said notice shall be in the form and contain the provisions prescribed in Attachment A hereto. The postmark of mailing to the Carrier member will determine the notification date."

In support of its position, the Carrier cites NRAB, Third Division, Award 36547, (Kenis), wherein the Board stated:

. . .

"In essence, the Claimants are attempting to relitigate the same claim that was adjudicated before the Board in Case 61 of Public Law Board No. 5473. However, that decision is final and binding under the Railway Labor Act and not subject to rehearing or "appeal" before the Board. Whether phrased as res judicata, collateral estoppel or stare decisis, every division of the Adjustment Board has recognized that the Board is barred from reconsidering claims that have been previously denied by another Section 3 tribunal. First Division Award 24618; Second Division Award 8551; Third Division Award 22406; Fourth Division Award 3443."

. . .

The Carrier and Referee Kenis are correct.

AWARD

Claim denied.

ORDER

This Board, after consideration of the dispute identified above, hereby orders that an Award favorable to the Petitioner(s) not be made.

NATIONAL RAILROAD ADJUSTMENT BOARD By Order of Third Division

Dated at Chicago, Illinois, this 30th day of May 2018.