PUBLIC LAW BOARD N0. 1760
Award No. 14
Docket No. MW-DEC-77-5
Parties Brotherhood of Maintenance of Way Employees
to and
Dispute Norfolk and Western Railway Company
Statement
of Claim: Carrier violated the Agreement by dismissing Track Foreman Tyson
from Carriers service on unproven charges and failing to hold
a fair and impartial hearing. Carrier shall now reverse the
decision of Mr. English and pay Mr. Dyson the additional 7 hours
straight time and the three hours overtime and any additional
time that he would have lost because of the decision of
Mr. English and strike this hearing From his record with all
rights unimpaired.
Findings: The Board, after hearing upon the whole record and all evidence,
finds that the parties herein are Carrier and Employee within the meaning of
the Railway Labor Act, as amended, that this Board is duly constituted by
Agreement dated February 2, 1976, that it has jurisdiction of the parties
and the subject matter, and that the parties were given due notice of the
hearing held.
Claimant Track Foreman was notified by the Division Engineer to
appear for formal investigation.
" . for submitting eight hours on the 17th of January, 1977,
and for eight hours on the 18th of January, 1977, for work
not actually performed, on Form AD 452, Extra Force 21,
Lafayette."
Claimant failed to appear for the investigation. As a result of
the investigation held, Carrier concluded that Claimant was guilty as charged.
He was dismissed from the service as discipline therefore. The fact that
Claimant was not personally at the investigation that was finally held on
PLs 11 b o
-2- Award No. 14
March 21, 1977 was neither error nor attributal to any action taken by
Carrier. The record reflects that special effort had been made by Carrier
to notify Claimant as to the investigation, despite it being continually
postponed and despite an effort to hand deliver notification of the investigation which Claimant refused to accept.
It is noted that Claimant was also told verbally to which he did
respond by stating that he would appear at the investigation with his
attorney. In any event, the various methods of notification undertaken
are deemed to have been sufficient. Claimant was properly advised as to the
investigation and its purpose. That he did not attend is not the responsibility
of Carrier. Carrier undertook reasonable and diligent efforts to assure
notification. Nor can it be held to have been error for Carrier to refuse
the General Chairman's request to recess the investigation until Claimant
was notified. The fact is that the record indicated that Claimant was
notified. It was therefore proper for Carrier to have proceeded in absentia
despite the General Chairman choosing to leave the investigation.
There was sufficient competent and probative evidence adduced to
support Carrier's conclusion as to Claimant's culpability. Claimant, had
in fact, signed his name to the Form AD-¢52 on which claim is made for
8 hours each for the 17th and 18th of January 1977. In addition to signing
such Form, the evidence also shows that Claimant did not work on January
17th and that he worked only a portion of the 18th.
The Board finds that Claimant received a fair hearing, that there
was sufficient evidence to support Carrier's conclusion and that the discipline
was not unreasonable. Here the Claimant had previously been dismissed from
the service once and consideration of his previous record in line with the
' PLf3 1,7100
-3- Award No. 14
offense committed was not improper. We cannot find that Carrier decision
was either arbitrary, vindictive or that it had acted in bad faith. The
Board will not substitute its judgment for that of the Carrier. This claim
will be denied.
Award: Claim denied.
'i
M. A. Christie, Employee Member G. C. Edwards, Carrier Member
-Arthur T. Van Wart, Chairman
and Neutral Member
Issued at Falmouth, Massachusetts, May 31, 1979.