SPECIAL BOARD OF ADJUSTMENT
140. 313
BROTHERHOOD OF MAINTEISANCE OF WAY EMPLOYES
and
UNION PACIFIC RAILROAD COMPANY
STATEMENT OF CIAIM:
"Claim of the System Committee of the Brotherhood that:
"(1) The Carrier violated the effective Agreement by improperly
dismissing from its service Sectionman Francisco L. Rodriguez
Section
714,
Fort Morgan, Colorado, effective July 1,
1954.
"(2) That Claimant Sectionman Francisco L. Rodriguez be now rein
stated to his former position as Sectionman on Section
714
at
Fort Morgan, Colorado, with seniority and vacation rights
unimparied and that he be reimbursed for all wages lost due
to the Carrier's improper action referred to in Part (1)
of this claim."
FINDINGS
:
Special Board of Adjustment No. 313, after giving the parties to this dispute
due notice of hearing thereon and upon the whole record and a71 the evidence, finds
and holds:
The carrier and employes involved in this dispute are respectively carrier and
employes within the meaning of the Railway Iabor Act, as approved June 21,
1934.
This Board has jurisdiction over the dispute involved herein.
Claimant was notifed of his discharge by letter dated August 28, 1958. Rule
40(a) provides for a hearing in such matters if timely request is made by the
employee or the organization.
It reads:
"An employe disciplined or who feels he has been unjustly treated, shall
upon making a written request to the Division Engineer within ten days
from date of advice, be given a fair and impartial hearing within ten days
thereafter by Division Engineer or an officer designated by him, such
officer to be superior to the officer or supervisor making the charge,
and a decision will be rendered as promptly as possible and within
twenty days after completion of hearing. Such employes may select
not to exceed three employes to assist at the hearing.
- 2 - Award No. 18 (SBA No. 313)
"The right of duly accredited representatives to request the hearing
in behalf of the employe and to assist him in the application of this
rule is recognized."
To this date, neither the claimant nor the organization has requested a
hearing on the matter. They have not followed the provided procedures under the
contract for obtaining relief. Although the organization was at all times free to
act, admittedly the claimant, being in jail, was under some handicap in pursuing
his rights, but the contract makes no exceptions in such situations, neither does
it give adjustment boards and referees authority to make exceptions or to perform
acts of grace.
This is sufficient to dispose of the claim but another argument of the organization should be answered, namely, that claimant was eventually acquitted of all
the same charges in a court of law.
It is well settled that the carrier in discipline and discharge matters may
act upon facts as it finds them to be. It is not bound by what any courts of law
determine to be an offense or no offense, what civil authorities do or refrain from
doing in prosecuting an alleged offense, although findings of a court or jury may
have probative value. Acquittals in courts of law may be erroneous depending upon
many things, for example, definitions of crimes, lack of prosecution, press of more
important matters, inept prosecution, weakness of witnesses, absence of witnesses,
perjury or exclusionary rules of evidence. Enforcement of the carrier's rules is
not necessarily predicated upon disposition of cases in courts of law.
The cases cited by the carrier are in point.
Collective Labor Agreements, 95 ALR 10; Buberl v. Southern Pacific Co.,
94 F. Supp. 11 (N.D. Calif. 1950); Bailey v. Nashville C. and S. L. Ry., 60 Ga. App.
142, 3 SE 2d 112 (1939); Torgensen v. Penn. R. R. Co., 138 A. 2d 24
(ICJ.
1958);
Third Division Awards 2166 (no referee); 2470 (Referee St. Clair Smith); 6010
Referee Messmore); 8843 (Referee F. B. Murphy); First Division Awards 15577
Referee Mabry), 14274 (no referee); and 13355 (Referee Munro).
The claim must be dismissed for the reason that claimant and the organization
have never asked for a hearing or timely pursued their rights under the contract.
AWARD
:
The claim is denied.
SPECIAL BOARD OF ADJUSTPEIT N0. 313
(s) Marion Beatty
Marion Beatty, Chairman
(s~
J.
Cunningham
A.
J.
Cunningham, Organization Member
Omaha, Nebraska
(a) A. D. Hanson
November 21,
1960
A. D. Hanson, Carrier Member