NATIONAL MEDIATION BO-A=
SPECIAL BOARD OF ADJUSTMENT
NO. 997
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CONSOLIDATED RAIL CORPORATION
-vs-
BROTHERHOOD OF
LOCOMOTIVE ENGINEERS
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DOCKET NO. CRE-19994-D
CASE NO. 107
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CLAIMANT: M.T. Dono~
e
FOR THE CARRIER: S.R. Friedman, howimYa~et Director
Labor Relations
FOR THE ORGANIZATION: Robert Godwin, General- ChAir4n,
BLE
NEUTRAL: Dr. James R. McDonnell
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EMPLOYEE'S STATEMENT OF CLAIM
Appeal of Engineer M.T. Donoq%e 757231 from the discipline
of 30 days actual suspension with time out held out of service to
apply.
OUTLINE OF OFFENSE `
Your failure in connection with the passing of DCS Station
San, Lockport Branch, Sanborn, New York without proper authority
at approximately 8:05 Am on January 25, 1999, when assigned as
Engineer on Train UNS 13B on duty 10:15 PM, January 24, 1999 at
Buffalo, New York.
FINDINGS OF THE BOARD
The Hoard, after hearing the whole record and all evidence
finds that the parties herein are Carrier and Ernloyee within the
meaning of the Railway Labor Act, as amended, that this Board is
duly constituted by agreement and has jurisdiction of the
parties, claim and subject matter which was held on May 18, 1999
in Jacksonville, Florida. The Board makes the following
additional findings:
DECISION
The Organization raises a threshold question concerning
Article G-M-11
- Discipline
grad Investigation, in particular (d)
(1), and (e)(1), which say:
(d)(1) An engineer directed to attend a formal investigation
to determine his responsibility, if any, in connection with
an act or occurrence shall be notified in writing within 7
days from the date of the act or occurrence or in cases
involving stealing or criminal offense within 7 days from
the date the Corporation becomes aware of such act or
occurrence. The notice shall contain:
(A) The time, date rind location where the formal
investigation shall be held.
(B) The date, approximate time and the location of the
act or occurrence.
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(C) A description of the act or occurrence which is the
subject of the investigation and rules which may be
involved.
(D) A statement that he may be represented by his duly
accredited representative.
(E) The identify of witnesses directed by the
Corporation to attend.
(2) When a letter of complaint against an engineer is the
basis for requiring him to attend the formal investigation,
the engineer shall be furnished a copy of the written
complaint together with the written notice for him to attend
the investigation.
(e)(1) The investigation must be scheduled to begin within
7 days from the date the engineer received notice of the
investigation.
The record shows that the Claimant was not notified of the
investigation in a timely fashion. The Carrier's contention that
this is a matter of a mis-aduressed notice is unacceptable.
Further, the Carrier's argument that the Claimant had been
verbally notified by a Supervisor, will not wash.
The parties are obligated to carry out the provisions of the
Agreement. In this case, the entire question of due process
comes before the bar and must not be ignored or set aside by the
parties, nor this Board.
The Board is unable to reach the merit of the offense. It
is barred from doing so by the failure of the Carrier to live up
to the provisions of the Agreement.
AWARD
Claim sustained.
The Claimant shall be made whole for all losses.
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.S'.R. Friedman,
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Director
Labor Relations
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R ert Godwin, G neral Chairman
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. James R. McDonnell.
eutral
October 22. 1999
Date
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