PUBLIC LAW BOARD NO. 1760
Docket MW-DEC-75-88
Parties 'Brotherhood of Maintenance of Way Employees
to and
Dispute Norfolk and Western Railway Company
Statement 1. Carrier'vlolated the effective agreement by dismissing
of M. L. Johnson and J. C, Flanery on December 1, 1975 on
Claim unjust and unproven charges. (Later changed to 45 days
actual suspension.)
2. Claimants M. L. Johnson and J. C. Flanery shall be
paid for all time held out of service and the hearing
be stricken from their records.
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.
Claimants, on December 1, 1975 were employed as Assistant
Foreman and Laborer respectively, in Carrier's Maintenance
of Way Department on the Decatur Division. The Roadmaster,
who arrived at the depot in Decatur about 1:50 PM on
December 1, 1975, were unable to find Claimants and began
to search for them. At about 3:55 the Roadmaster came back '
to the depot and found the Claimants standing on a tamper
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76 ° ' Award No. 21
Page 2
behind the depot. They advised the Roadmaster they had
been working at the Plastic Plant. Since the Roadmaster
had been there on two separate occasions and had not
located Claimants he thereupon dismissed them from service
for not following his instructions and not performing
work as directed.
A hearing was requested under Rule.20 of the effective
Agreement.- A formal investigation was held on January 5,
1975:
. "to determine your responsibility in connection
with being dismissed from service on December 1,
1975 at approximately 3:55 PM by J. A. McBride,
Track Supervisor, without first being given a
fair and impartial hearing."
As a result of such hearing Carrier concluded Claimants
had not followed instructions.. Nonetheless, Carrier miti
gated their discipline from a dismissal to a forty-five
(45) day actual suspension. _
Rule 20 of the Schedule Agreement between the parties,
effective December 1, 1963, reads:
"DISCIPLINE AND GRIEVANCE.
(a) An Employee who is disciplined or dismissed
' without first being given a fair and impartial
hearing will, on written request (made either
in person or through a duly authorized representa
tive of the Brotherhood of Maintenance of Way
EmRloyees) to the immediate Supervisor, made
within ten (10) calendar days of advice of
discipline or dismissal, be given a ,fair and
impartial hearing within ten (10) calendar days
after receipt by the Supervisor of such request.
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Page 3
'At the request of either party the hearing
will be postponed. The hearing will not be
postponed in excess of ten (10) calendar
days beyond the date first set for it to be
held except by Agreement between the Company
and the General Chairman ...."
The General Chairman requested a hearing under Rule 20
under date of December 5, 1975. He advised that he would
be available December 9 and 10, in Decatur, for formal
investigation. However, the Division Engineer - Maintenance
under-date of December 9, 1975 set a formal investigation
for January 5, 1976.
At the outset of the hearing the General Chairman protested
the fact that the hearing wasn't being held as provided in
Rule 20 within the required time limits. The protest was
completely ignored. A procedural violation such as this
makes the investigation null and void ab initio. There is
no cause to review the case on its merits. Therefore,
this claim will be sustained on the basis of the procedural.
error.
Award Claim sustained as per findings.
Order Carrier is directed to make this Award effective within
thirty (30) days of date of issuance shown below,
M. A. Christie, mp 'oyee Member co s, Carrier e er
m
GCG~
Arthur T. Van Wart, Chairman
· and Neutral Member
Issued at Salem, New,Jersey, April 4, 1980.