Barstow. We have reviewed the investigation and feel that the decision as originally rendered shall stand. Your claim is declined. Very truly yours, (Signed) C. A. Crouch" The claim was then appealed by General Chairman McLennan in the following letter to General Manager Landreth: "September 13, 1960 "Mr. J. W. Lendreth, General Manager, AT & SF Railway Company, 121 East Sixth Street Los Angeles 14, California "Dear Sir: "In accordance with the provisions of Rule 33, of our Agreement, we wish to appeal the decision of Mr. C. A. Crouch, Supt. of Communications, Claim for and in behalf of Mr. Paul E. Smith, Electronic Technician, Barstow. "Claim: That: Electronic Technician, Mr. Paul E. Smith, be returned to his position as Technician, at Barstow, with all vacation, pass and seniority rights protected plus any and all compensation due him for time lost, from the date of July 21, 1960, forward until returned to his position as Electronic Technician. "July 21, 1960, Mr. Smith was removed from his Electronic Technician position account, alleged violation Rules 20, 21 and 22, ‘General Rules, Guidance of Employes' accused of being found asleep on duty at 5:25 A. M., Saturday, July 16, 1960. "This investigation was held August 1, 1960, copy of which was furnished the employes August 3, 1960, July 19, 1960, investigation was held on Mr. Smith for alleged falsification of application for employment. This investigation did not stand-up for reasons that the only evidence against Mr. Smith was hear say evidence. Then Mr. Smith was taken off his position and out of service for alleged sleeping while on duty. At the time of this investigation, the employes investigating officer recommended that Mr. Smith, for his part in this Company Rule violation be assessed demerits. This recommendation was based upon evidence presented during the investigation. Upon receipt of copy of the transcript of said investigation, it was reviewed carefully and we fail to find any positive proof that Mr. Smith was asleep. He readily admitted he was prone on a bench absorbing technical information available in an Air Force Manual, identified by number, 900-016. This is the first time to the knowledge of the employes that, an employe has been disciplined so severely for trying to improve himself in his particular line of work. "One witness in this investigation testified that Mr. Smith was asleep. Mr. Smith testified that he was not asleep, but was laying down reading the above mentioned magazine. The second witness also testified that Mr. Smith was asleep. However, this second witness, by his own testimony, was not sure what he did see, if he saw anything, other than Mr. Smith setting on a bench. He was able to observe that by the fact that he was able to see Mr. Smith's head over the top of a bench partition. By the construction of the shop and the bench involved, it was impossible for him to see more. The witness testified under questioning that he was abreast with the first witness. This is impossible, with the construction of the shop as it is, the street door opens in, there was a desk that stopped the door, making it impossible for Mr. Goddard (the second witness) to observe Mr. Smith, other than to know some one was setting on that bench. We know that the Carrier's high standard of expected integrity will not allow this witness to influence their decision. The third witness did not know what took place, he being confronted with the same situation as the second witness, their being a high partition between him (the third witness) and where Mr. Smith was. "From the evidence available, it is evident that the most Mr. Smith could be charged with, is inattention to duty and not working at the time of 5:25 A. M. This was brought about, as the investigation revealed, because of the workings of the Shop. One man taking over the duties outside the shop, the other taking over the duties inside the shop. And when there was no work outside, the outside man for that night, took it easy. Mr. Smith, not having any trains at that particular time 5:25 A. M., was lax in his attention to the fact that he was on duty. The Management allowed this condition to arise by allowing the men to exchange duties as was revealed in the investigation, and as pointed out above. One man worked in the shop one night the other worked in the yard, the next night they exchanged duties. "As stated earlier, in view of what was developed in the investigation, the employes recommend demerits. This was sufficient punishment for the violation, any other evidence was not supported at the investigation. Discharge, far exceeds the needed discipline to punish for such a small violation of a Company Rule. Discharge is a very severe penalty. "In view of the need for fair and impartial punishment for all violations of Company Rules, that punishment should be in keeping with the severity of the rule violation, we respectfully request that this claim be allowed as presented. "October 7, 1960 AO-64112 "Mr. E. F. McLennan, General Chairman, "Dear Sir: "Please refer to your letter of September 13, 1960, file 20-10234860, appealing the claim that former Electronic Technician Paul E. Smith, of Barstow, be returned to his position at Barstow with all vacation, pass and seniority rights protected, plus compensation for time lost from July 21, 1960 until returned to service. “Your letter has been carefully considered, but a review of the transcript of formal investigation definitely shows that Mr. Smith was asleep while on duty and under pay and was, therefore, subject to dismissal. "In view of the facts as developed in the investigation the claim as outlined in your letter of September 13, 1960 is respectfully declined. Yours truly, (Signed) J. N. Landreth" Following receipt of the general manager's declination of the claim, the general chairman appealed it to the Carrier's Assistant Vice President of Personnel, who is the highest officer of the carrier for appeal, in the following letter: "November 21, 1960 "Mr. L. D. Comer, Asst. Vice President, AT & SF Railway Company, Railway Exchange Bldg., 80 East Jackson Blvd. Chicago 4, Illinois. "Dear Sir: "In accordance with the provisions of Rule 33 of our Agreement, we wish to appeal the decision of Mr. J. N. Landreth, General Manager, claim for and in behalf of Mr. Paul E. Smith, Electronic Technician, Barstow. "Claim: That Electronic Technician, Mr. Paul E. Smith, be returned to his position as Technician, at Barstow, with all vacation, pass and seniority rights protected plus any and all compensation due him for time lost, from the date of July 21, 1960, forward until returned to his position as Electronic Technician. "July 21, 1960, Mr. Smith was removed from his Electronic Technician's position account, alleged violation Rules 20, 21 and 22, 'General Rules, Guidance of Employes' accused of being found asleep on duty at 5:25 A. M., Saturday, July 16, 1960. "This investigation was held August 1, 1960, copy of which was furnished the employes August 3, 1960. July 19, 1960, investigation was held on Mr. Smith for alleged falsification of application for employment. This investigation did not stand-up for reasons that the only evidence against Mr. Smith was taken out of service pending an investigation, for alleged sleeping while on duty. There is no evidence in the transcript that would indicate that Mr. Smith was asleep. "At the time of this investigation, the employes investigating officer recommended that Mr. Smith, for his part in this Company rule violation be assessed demerits. This recommendation was based upon the evidence presented during the investigation. Mr. Smith admitted that he was prone upon a bench reading a technical magazine, identified as an Air Force Manual 900-016. The Carrier readily admits that they encourage their technical employes to keep abreast of the Electronic field and when they have slack periods of work and at lunch time to read and study this information. This Smith was trying to do. The Carrier had recently installed a Micro-Wave at Barstow, the equipment was new, it had to be maintained and it was up to the employes and the Managements best interest that all be versed in its symptoms and operations. This is the first time to the knowledge of the employes that, an employe has been disciplined so severely for trying to improve himself in his particular line of work. "One witness in this investigation testified that Mr. Smith was asleep. Mr. Smith testified that he was not asleep, was laying down on a workbench reading the above mentioned magazine. The second witness also testified that Mr. Smith was asleep, that witness, by his own testimony, was not sure what he did see, if he saw anything. Other than Mr. Smith setting on a bench, he was able to observe that for reasons Mr. Smith's head was above the partition on the two work benches. It was impossible for this second witness to see if Mr. Smith was asleep, due to the construction of the Shop where Mr. Smith was. The door on this shop from the track side opens in, there is an office desk that obstructs traffic to the back of the shop, and as stated earlier the view to the back of the shop is obstructed by a work-bench partition or test rack. This made it impossible for this second witness to see anything until he walked well into the shop. "From the evidence available, it is evident that the most Mr. Smith could be charged with, is inattention to duty and not using his hands to work with at the time of 5:25 A. M. This was brought about, as the investigation revealed, because of the workings of the shop. One man taking over the duties outside the shop, the other taking over the duties inside the shop. And when there was not physical work outside, the outside man for that night used the slack time for improvement of his technical skill. The Management allowed this condition to exist by allowing the men to exchange duties as was revealed in the investigation, and as pointed above. One man worked in the shop one night the other worked in the yard, the next night they exchanged duties. "As stated earlier, in view of what was developed in the in vestigation, the employes recommended demerits. This was sufficient punishment for the violation, any other evidence presented was not supported by facts. Discharge, far exceeds the needed discipline to punish for such a small violation of a Company rule. If employes are not to study technical magazines while on duty, then they should be told not to do so, but when it has been encouraged and then a man is discharged for so doing, it has the appearance of discrimination. "In view of the fact that the investigation does not support so severe punishment as given in the instant, we respectfully request that Mr. Smith be returned to work as claim suggests and that this claim be allowed as presented. "Will be willing to arrange conference if futher information is needed. "Please advise. Very truly yours, (Signed) E. F. McLennan E. F. McLennan General Chairman cc: Mr. J. N. Landreth" On January 5, 1961, Carrier's Assistant Vice President of Personnel declined the claim as follows: "January 5, 1961 "Mr. E. F. McLennan, General Chairman, Int'l. Bro. of Electrical Workers, 826 Alvarado St. Redlands, California "Dear Sir: "Your letter of November 21, 1960, file 20-1023-4860, appealing claim that former Electronic Technician Paul E. Smith, Barstow, California, be returned to his position at Barstow with all vacation, pass and seniority rights protected, plus compensation for time lost from July 21, 1960 until returned to service. "My investigation of this case and careful reading of the transcript of formal investigation held therein, developed that despite your contentions to the contrary, substantial evidence was presented that Mr. Smith was asleep while on duty and under pay, and was therefore subject to dismissal. In consideration of all the facts, the claim that he is entitled to reinstatement is not supported by the Agreement rules, and as it lacks merit, must respectfully be denied. Very truly yours, (Signed) L. D. Comer" |