P UL~IL-C LAW
'?'.RD
t,'0 . '.8
W4
AWARD
*11D.
41
CASE
im : 53
Brotherhood of
Maintenance of Way Fhployees
and
cago and north Western Transportation Company
"Claim of the System Committee o.' the Brotherhood that:
tr
(1) The twenty (20) days actual suspension and 1-btice to Serve Deferred
Suspension No. 5A indicating ten (10)
dues
suspension of D. !-Liner,
Roadway Equipment Foreman, was improper, without just and vufficient
cause and on the
ba.s
of unproven charges (Carrier
ale zoo. D-11-3-262).
"(2) R.oadws_y Equipment Foreman D. Miller be paid for all tLue lost because
of violation referred to within Part (1) o--'*
this
clam." -
OPIN-T-ON OF BU PD;
Claimant is employed as a Roadway Bquipment Foreman on Carr ier·: Iowa
Mvision.
Daring his six years of employment he has a proven history of autonobi'l.e accidents, personal injuries, and traffic citations, some of which.have
occurred
in
Company vehicles. Hg has served several disciplinary suspensions for
his responsibility in connection with the accidents in Company vehicles. Follow
Int; the most recent accident he
was given
verbal orders not to drive any Company
vehicle without
permission from Office Engineer J. E. Trotter. , There, is no doubt
on this record 'hat this restriction teas communicated to Claimant and acknowledged
try
him.
On
April
19,, 1977'
i4hile
working on the road between Des :Minas? Iowa,
and Leavenworth, Kansas., Claimant was requested by Roadway Equipment Mechanic
J. E. Drawn to take over the driving of a Company vehicle. Claimant did so and
within minutes he was stopped by a police officer anal issued a citation for driv
ing 70 miles per hour in a
,55-
a per-hour zone through
Wbrth County, Iissouri.
Claimant did not inform his employer about the ticket, he did not appear in Court
nor did he pay the fine. Claimant just ignored the traffic citation and on
August 24. 1977, Carrier was notified by the Sheriff of 111orth County, ?-~.issouri
s
that a. warrant had been issued for Claimantf s arrest. Thereafter, under date of
August 30, 1977, Carrier served notice upon Claimant to appear .for an investigation
into the following charges
.
"Your responnibility in connection with you.. unauthorized use of
Company vehicle and speeding violation at 'U.S. 169
and Route F in
Worth County, Ydssouri on April 19,, 1977, for which you are charged
with violation of Rules ?, 8 and 18 of the General Regmi.ations and
Safety Rules,, effective June 1, 1967.
rr
The original )yotice of Investigation was dated August 30, 19777, and set
down a hearing date cf September 2, 1977. Contained in the same envelope with the
fbtice of Hearing., howeverv eras a I1otice of Postponement, also dated August 30,
1977., and setting adjourned hearing date of September 13, 1977. It is not dis
puted. that Carrier postponed the original scheduled hearing because certain
essential Carrier
iritnesses had calendar
conflicts and could not be available on
September 2, 1977. Subsequently the Organization requested several postponements,
al? of which were granted by Carrier. The hearing commenced on October 26, 1977,
but again was
adjourned and concluded on 1bveuber 14, 1977, because Claimant's wit
ness was not present on the earlier date..
At the outset of the
hems
the following exchange occurred between .
then General Chairman Zimmerman and Hearing Officer Wearmouth:
erStatement by hr. Zimmerman
"Mr. Wearmouth., as you read the: charge against Mfr. Killer and notification and the postpozxements~, the notice of the investigation dated
August 30 and the postponement was dated August 30 was received in my
office., September l.. 3.977 At no ties<e was I contacted or Vice Chairman
Jorde contacted for the postponement of this
investigation
and according
i ~
to Rule 19 it must be by mutual agreement either by the carrier
or myself .for the postponement and, therefore, I could not concur
to this postponement so this investigation will be under protest.
"Statement
by
Mr. Wearnouth
"Mr. Zimmerman, your protest will be noted under .Ruae 19, as it
states in there the investigation will be postponed for good and
sufficient reasons upon request by either party, which I'm sure.
with some of the problems ire have been
hate
would have been.
"Statent b Mr. Zimmerman
"I Ti.now that Vice Chairman Jorde and myself were available.
"Steterzent burr >xr. Wearmouth
"I realize that,, but with the problems
bye
have been having and e.
good number of investigations, I'm sure that it would not be post
poned without good sufficient reason so ire will record your protest
and go on with s hearing."
The hearing proceeded, and on the basis of evidence adduced anti his
prior disciplinary record, Claimant was assessed a twenty--day suspension without
pay. T`n3.s activated a ten--day deferred suspension which was pending .from his prior
automobile accidents so that Claimant actually served s thirty-day- suspension.
the instant claim mounts no serious challenge to the sufficiency of the
evidence nor the appropriateness of the penalty imposed. Indeed, were thosa
tae
only issues we would deny the cleim. But the claim comes to us on the procedural/
jurisdictional complaint that Carrier violated Rule 19 ta) which reads: in pertinent
part
as
follows:
IlThe investigation will. be postponed for good and sufficient reasons
on request of either party."
The crux of this elaim,as presented and pursued on the property, is that
Carrier did not "request" but rather just unilaterally presumed to postpone the
hearing originally scheduled for September 2, 1977. On the property Carriee defended
against that complaint by asserting that there were "good and sufficient reasonst'
for postponement, and also by pointing out that the Organization requested and was
granted several postponements by Car---' lor before the hearing actually teas held.
! t our hearing Carrier asserted for the first time that then Vice
Chair-man jorde
eras "told" about the ne: essity of a postponement prior to August 30,, 1977. The
Organiuation
articulated its
objection regarding that postponement on the record
at the hearing and pursued this objection diligently on the property. At no .
time prrior to our Board
Hems
did Carrier raise this latter defense. It cores
too late not to box legitimately raised and considered.
There is no doubt on this record concerning the "good anal sufficient
reauso=
9
why Carrier wanted a postponement. The only question is whether Carrier
corDlied with the clear contractual requirement that it "request" such postpone=
anent from the other party to that agreement. 1b "tell" is not the sane' as to
"request." We must
assure that the parties to the ,Agreement knew the meaning
of the
words which they
used. Irrespective of the bona fides or the justification for a postponement, Carrier violated Rile l9(a) when instead of requesting
a postponement it unilaterally granted itself a ~ postponement and merely in,sd
the Organization of that fait accompli. It should be noted that each party is
required to grant the other a postponement under .Rule 19{a} when requested to do
so for good and sufficient reasons. If Carrier had .requested that particular
positponement and the Organization had refused., tae would have a different case.
But Carrier's fatal error herein eras in failing altogether to make the request
and in acting unilaterally.
Nor in the final analysis is it really relevant that Carriier subsequently granted sever,. requests from the Organization for postponements. Such
considerations go to questions of equity and comity; whereas we are called urpon
here try intexpret clear and unambiguous contract languages Perhaps the result
does not seen "fair" or a layman might deem that the "guilty party" has been
petted
to escape through a technical "loophole." However,,
we
do not sit
to ease our ou-n particular brand of justice. Father., we are requested
to interpret the contract before us anal where it is clear tie have no alter
native but to enforce it as it is written.
See Award 3-11757.
Public Law Board 2b. 1844, upon the whole record and alb.. of the
evidence,
fond holds as follows
t
.
1. "Chat they Carrier and Employee involved in this dispute axe.. res
pectivelyo Carrier and Daploree with; n the meaning of the Railway Labor
Act;
2. that the Board has Jurisdiction aver the dispute involved herein;
and
hat the Agreement, eras violated.
The claim is sussed to the extent indicated in the Opinion. Carrier
°i s directed to comply with this Award within
try
days of
issuance.
Dana E. Eischen., Chairman
b. O. Harper., loyefezlher
Datedt
~
Fi. W. Schzieges Cart ierJliember