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The final chapter in the handling of this case on the property is contained in Mr. Comer's letter to Mr. McLennan dated June 1, 1961, confirming conference of May 24, 1961 which is quoted below:

“June 1, 1961
125-33-113

“Mr. E. F. McLennan, General Chairman
Int'l Bro. of Electrical Workers,
826 Alvarado St.
Redlands, California

“Dear Sir:

"Referring to your file 20-1023-4860 concerning your appeal claim that former Electrician 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.

“This will confirm discussion of this case in conference on May 24, 1961. The circumstances surrounding the same were fully discussed in the conference, and without reciting all the details thereof, it suffices to state that nothing was developed therein to warrant any change in my former denial dated January 5, 1961, and it is hereby affirmed.

Very truly yours,

(Signed) L. D. Comer"

In handling the claim on the property the employes have not contended that the carrier has violated any rule of the agreement between the carrier and System Federation No. 97.

POSITION OF CARRIER: It is the carrier's position that the employes' claim in the instant dispute is wholly without support of the agreement rules or merit, that dismissal of Mr. Smith was proper in view of the facts developed in formal investigation and that the claim should be declined for reasons hereinafter expressed.

An examination of the transcript of the investigation in this case will leave no doubt that Claimant Smith was asleep on a bench in the radio shop at Barstow while on duty and under pay at approximately 5:25 A. M., July 16, 1960. Testimony of Communications Engineer Dragoo, and testimony of Lead Electronic Technician Goddard, definitely proves that Claimant Smith was asleep.

While Mr. Smith's representative tried every means at his command to shake the testimony of witness Goddard, he was unable to do so and Mr. Goddard remained steadfast in his statement that Mr. Smith was asleep.

It is also noteworthy that Mr. Smith's representative did not question the testimony of witness Dragoo who was the first person to observe Mr. Smith and whose testimony was emphatic as to Mr. Smith being asleep.

There is also the testimony of witness Stordalen reading as follows:

"Q. Was Mr. Smith also on duty the same morning ?
A. Yes.

Q. What was he doing ?
A. I believe he was sleeping at that particular time.

Q. Do you know that he was asleep?

A. I don't know whether he was asleep, but he was lying on the bench at that time.” (Emphasis ours)

While Mr. Stordalen was not positive that Mr. Smith was asleep, he believed that he was and he was certain that he was lying on the bench at the time Messrs. Dragoo and Goddard entered the radio shop. As a matter of fact, Claimant Smith admits that he was stretched out on the bench and not performing any duties. Quite understandably he contended that he was not asleep, but was reading a radar manual, but this is contrary to the testimony of witnesses Dragoo and Goddard who testified without reservation that Mr. Smith had no reading material in his possession.

Because of his action in sleeping on duty in violation of Rules 20, 21 and 22 of Form 2626 Standard, 1950 issue, of the general rules for the guidance of employes, which read:

20. Employes must obey instructions from the proper authority in matters pertaining to their respective branches of the service. They must not absent themselves from duty, exchange duties, or substitute other persons in their places without proper authority. They must report for duty as required and those subject to call for duty will be at their usual calling place or leave information as to where they may be located.

“21. Employes must not be careless of the safety of themselves or others, indifferent to duty, insubordinate, dishonest, immoral, quarrelsome, or vicious. They must conduct themselves in a manner that will not bring discredit on their fellow employes or subject the railroad to criticism and loss of good will.

“22. Courteous deportment is required of all employes in their dealings with the public, their subordinates, and each other.

Employes must not enter into altercations, play practical jokes, scuffle, or wrestle on company property.

Employes must devote themselves exclusively to their duties during their tour of duty.” Mr. Smith was removed from service.

Mr. Smith was guilty of violation of that part of Rule 20 reading “They must not absent themselves from duty

He was guilty of violation of that part of Rule 21 reading “Employes must not be

indifferent to duty Finally Mr. Smith was in violation of Rule 22 reading "Employes must devote themselves exelusively to their duties during their tour of duty."

Claimant Smith and his representative, General Chairman McLennan, admit that he was lying down on a bench while he was on duty and under pay, but contended that dismissal from service was too harsh a penalty for the rules infraction and it should have been disposed of by an assessment of demerits. The carrier submits that where guilt is established, as in this case, the measure of discipline rests with the carrier. Its action in dismissing Claimant Smith was not arbitrary, capricious or in bad faith, but was justified by the nature of the offense, was entirely proper and should be upheld. When discipline has thus been applied, the Board has heretofore consistently refused to substantiate its judgment for that of the carrier. This principle has been supported by many awards of this Division of the National Railroad Adjustment Board, excerpts from the findings in a few typical awards being quoted hereunder.

Award No. 1323: “ * it has become axiomatic that it is not the function of the National Railroad Adjustment Board to substitute its judgment for that of the carrier's in disciplinary matters, unless the carrier's action be so arbitrary, capricious or fraught with bad faith as to amount to an abuse of discretion. Such a case for intervention is not presently before us. The record is adequate to support the penalty assessed."

Award No. 1692: "The question then remains, was the penalty imposed excessive ? This and other Divisions of the Board have often said they would not substitute their judgment for that of the carrier, unless its action in that respect can be said to be arbitrary, unreasonable, or unjust."

Award No. 1809: “There was direct conflict in the evidence. The board is in no position to resolve conflicts in the evidence. The credibility of witnesses and the weight to be given their testimony is for the trier of the facts to determine. If there is evidence of a substantial character in the record which supports the action of the carrier, and it appears that a fair hearing has been accorded the employe charged, a finding of guilt will not be disturbed by this Board, unless some arbitrary action can be established. None is here shown. Reasonable grounds exist to sustain the determination of guilt made by the carrier.”

Award No. 1817: We adhere to the rule that if the evidence is susbtantial and supports the charges we will not disturb the findings unless it is affirmatively made apparent to us that the carrier's action is so clearly wrong as to amount to an abuse of discretion. The Railway Labor Act does not prohibit a carrier from discharging employes for inefficiency or bad conduct. Nor does the collective agreement prohibit such action.”

Award No. 1979: "Such hearing is not analogous to a criminal proceeding, requiring 'irrefragible evidence of guilt, as urged by employes. We properly determine only whether there appears to be decision without prejudice and penalty without caprice.

Award No. 2683: “The claimant denied the charge. The resolution of such conflicting evidence is a function of the officer conducting the investigation initially. Since evidence was adduced to support his findings and there is no evidence that the carrier acted arbitrarily or capriciously, the claim must be denied.”

Award No. 3266: "Awards of this and other Divisions of this Board are definite and uniform as to the prerogative of the carrier and degree of proof required to support a finding against an employe who has been charged with an infraction of rules of the company or of a controlling agreement.

“Typical of these awards is No. 2207, Referee Carter sitting with the Second Division:

"It is not the function of this Board to weigh the evidence as in an original hearing."

"If the evidence is sufficient, if believed, to sustain the carrier's findings, the carrier's action must be sustained.”

“It is within the province of the representative of the carrier who presides at the hearing to determine the credibility of those who testify and to weigh and evaluate their testimony. If upon so doing, it is probable that the charge is proven and the representative so finds, this Board may not disturb that finding unless it is manifestly unsupported by the evidence.

“Proof beyond a reasonable doubt, as required to convict in criminal prosecutions in Courts of Law, does not apply."

Attention is also directed to the following excerpt from Award No. 14552 of the First Division:

"Petitioner here relies upon two grounds in support of the within claim. 1. Claimant did not receive a fair and impartial investigation as contemplated by the rules; and 2. The evidence does not support the charges.

“We must resolve both questions against claimant's contention. A careful examination of the record fails to disclose any irregularities (although there are some) which could be said to be substantial or prejudicial to claimant. And we find there is substantial evidence to support the charges and the Carrier's findings upon which the discharge from service was based. In proceedings such as these we do not examine the record of testimony to determine weight or creditability. We look for substantial and satisfactory support, and when that is found our inquiry ends. Awards upon this point are so numerous as to make citation of any of them unnecessary.

“We find ample support for the findings and charges involved in this inquiry, and the Carrier's disciplinary action will therefore not be disturbed.”

See also Third Division Awards 2297 and 2498, and Fourth Division Awards 901 and 1268.

This Board has also recognized and held that sleeping on duty while under pay is a serious offense. See for instance Second Division Awards Nos. 1664 and 1795 in that connection. This Board has also held that sleeping on duty results in a complete neglect of duty and is subject to discipline. See Second Division Award 1541. Furthermore, attention is directed to the fact that Claimant Smith in the instant dispute had but six months service with this carrier. His action in sleeping on duty clearly indicated that he was not interested in his job nor in becoming a reliable employe. In that connection witness the following from the Board's Findings in Second Divislion Award No. 1658, denying claim involved:

*

His seniority as a car inspector dated from October 7, 1950. He had been working on this position less than ten months. He has no long record of faithful and efficient service to receive the consideration of this Board.

“We can find no reason in the record to warrant us in interfering with the decision of the carrier. There being sufficient evidence in the record which, if believed, establishes the violation of the rules alleged to have been violated and there being no mitigating circumstances, the action of the carrier cannot be said to be arbitrary or unreasonable."

In conclusion the carrier submits that the evidence in this case is conclusive that Claimant Smith was asleep while on duty and under pay and that his dismissal was fully warranted.

Without prejudice to the position of the carrier that it was justified in dismissing the claimant for reasons which are stated hereinabove, carrier desires to further state that if this claim is sustained, and the carrier emphatically asserts that the claim does not merit such a decision, nor does the employe even merit reinstatement, any allowance for wage loss should be less amounts earned in other employment, pursuant to the provisions of Rule 3342, paragraph (d), of the current shop crafts agreement, reading:

"If the final decision shall be that an employe has been unjustly suspended or dismissed from the service, such employe shall be reinstated with seniority rights unimpaired, and compensated for the net wage loss, if any resulting from said suspension or dismissal.” (Emphasis ours)

Attention in this connection is also directed to Second Division Awards 2811, 2653 and 1638, Third Division Awards 6074 and 6362, and Fourth Division Award 637.

The carrier is uninformed as to the arguments the Brotherhood may advance in its ex parte submission, and accordingly reserves the right to submit such additional facts, evidence or argument as it may conclude are necessary in reply to the Brotherhood's ex parte submission or any subsequent oral argument or briefs presented by the Brotherhood in this dispute.

FINDINGS: The Second Division of the Adjustment Board, upon the whole record and all the evidence, finds that:

The carrier or carriers and the employe or employes involved in this dispute are respectively carrier and employe within the meaning of the Railway Labor Act as approved June 21, 1934.

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