The Second Division consisted of the regular members and
in addition Referee Arthur Stark when award was rendered.
SYSTEM FEDERATION NO. 99, RAILWAY EMPLOYES'
DEPARTMENT, AFL - CIO
(Carmen)
EMPLOYES' STATEMENT OF FACTS: Carman Fred F. Jenkins, hereinafter referred to as the claimant, entered the service of the Illinois Central Railroad, hereinafter referred to as the carrier, in the year 1935. At the time of the incident giving rise to the instant claim, claimant was regularly employed by carrier as a car inspector, South Water Street, Chicago, Illinois.
On December 1, 1967, J. P. Haines, carrier's superintendent freight service, addressed the following letter to claimant:
Please arrange to attend a formal investigation to be held December 8, 1967, at 10:00 A.M. in Office of Master Mechanic, Room 500 Annex, Central Station, to determine your responsibility if any for conduct unbecoming an employe at Congress Street Yard Office on November 24, at approximately 9:00 A.M.
Clearly there is no basis for concluding the company abused managerial discretion in this case, the employee had caused trouble in the past and efforts to persuade him to get along with others failed. He was guilty of shameful conduct on the date in question. In order to maintain discipline and respect for authority, the company had no alternative but to dismiss the claimant from service. Reinstatement would in effect give employees license to abuse and hold up to ridicule the supervision.
The company has shown that the claimant is guilty of a serious offense and that the union does not dispute his guilt. It has also shown that the Division has traditionally refused to substitute its judgment for management's in evaluating the measure of discipline. There is no evidence in this case that the company acted arbitrarily. Clearly, the claim should be denied.
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.
This Division of the Adjustment Board has jurisdiction over the dispute involved herein.
Carman Fred F. Jenkins entered Carrier's service in 1935 at the age of seventeen. He continuously employed by Carrier, except for a stint in the Armed Forces, until December 1967. During this 32 year period Mr. Jenkins was never disciplined except for a 1965 letter of admonition concerning some damage to trailer caused by his misjudgment of the trailer's height.
On December 1, 1967, Mr. Jenkins was formally charged with "conduct unbecoming an employe". Specifically, it was alleged that, on November 24, at the Congress Street Yard Office,
A hearing was conducted on December 12, 1967; Mr. Jenkins was discharged on December 19. The grounds: "The investigation developed that the
charges were sustained and that you violated Superintendent's Bulletin Notice No. 1 . . ."
Testimony at the investigation was presented by Master Mechanic H. H. Dawson, General Yardmaster 0. W. Derr, Trainmaster F. A. Brink, Terminal Air Brake Foreman D. W. Reihel and Carman Jenkins. With respect to the events of November 24, 1967, this testimony reveals:
On the morning of November 24 Claimant Jenkins, assigned as a Car Inspector, became disturbed because two cars had been moved, he believed, without his being advised. He was close to these cars when they were moved, he recalls. Following this incident Jenkins entered Yardmaster Derr's office. According to the Yardmaster, Jenkins "shouted I was trying to murder him and he even turned up his radio and said he wanted the whole town to hear it . . . I couldn't calm him down. I tried to tell him no one tried to murder him and he kept yelling." Jenkins asserted Derr had told him to "cut the air in on 13", but Derr replied. "I thought you pointed to 14." Jenkins accused Derr (the Yardmaster recalls) of not being able to handle the Congress Street Yard operation, adding that "he was going to get rid of me and have me taken up with the General Chairman..."
At about 8:30 A.M. Derr phoned Trainmaster F. A. Brink to report Jenkins' behaviour. Brink went immediately to the Congress Street office where he joined Derr and several switchmen. Master Mechanic Dawson and Foreman Reihel joined Derr and Brink and the four men then interviewed Jenkins, who was in the next room. Jenkins told them, according to Brink, "They all are trying to kill me; they tried to get me in the world war." Dawson asked about the car moves. Jenkins reported they were trying to kill him and charged "you are trying to hold a kangaroo court on me." He accused Dawson, "you never done a thing for anyone in the department and you have to do what this man says" (indicating Brink). Jenkins then accused Brink: "You are the man that called me a homosexual." Turning back to Dawson, Jenkins charged, "You are no more a supervisor than a ten year old kid, and are just a cancer nose." Dawson: "Tiny, you get ready and go home." Jenkins told Derr, "I will get you", and left, but returned in a few minutes and addressed Brink, "I will get you too."
Master Mechanic Dawson corroborated Brink's testimony (as did Mr. Reihel) and recalled, additionally, that Jenkins accused him of trying to "get him" ever since he (Dawson) had come on the job, that he was "just like the rest of them, they were all out to `get' him", and that "he was not afraid of me and would `get' me before I ever got him."
Claimant Jenkins' testimony regarding November 24's events may be summarized as follows: (1) He was perturbed about the two cars having been moved while he was so close to them. (2) He did accuse Yardmaster Derr of attempting to kill him but that "was not the intent of the meaning". (3) He did not tell Dawson that he was no more of a supervisor than a 10 year old kid or make the other allegations noted by his superiors. (4) He made no threats. Carrier representatives misinterpreted his words.
Notwithstanding Claimant Jenkins' denials, we are convinced that on November 24, 1967 he made the statements in the Company's office (and before) attributed to him by Management witnesses. There is no doubt that he was disrespectful, quarrelsome and abusive to his superiors. On the other hand, there is no convincing evidence that operations or service was dis-
rupted or that Claimant was insubordinate in the sense of refusing or failing to obey orders or perform his duties.
It seems highly doubtful whether Claimant's November 24 tirade could really have been based on the alleged yard incident. Clearly, he overreacted. Moreover, it is fair to assume that his actions could not have been typical of his conduct since Management would never have tolerated such behaviour for thirty-two years. In this regard, note these comments in the record about his past performance:
How, then, can Claimant's actions be accounted for, if at all? The record provides several clues:
1. When asked if the believed the supervisors who testified about his November 24 actions were prejudiced against him, Claimant responded:
2. In August 1967, a few months prior to the "final" incident, General Yardmaster Derr told Trainmaster Brink that they were having "the same old trouble we have always had" with Jenkins. Brink then asked the employe what the problem was. Jenkins replied:
3. On another occasion, according to Trainmaster Brink, he and Master Mechanic Dawson tried to help Jenkins "get straightened out". There had been complaints from men working with the Claimant who were scared of him because of his actions. "We tried to assist Mr. Jenkins, not knowing or having the capabilities of determing what was causing this", Brink recalled. He and Dawson finally recommended that Jenkins visit the Illinois Central Hospital for a check-up, which he did.
4. Master Mechanic Dawson recalled that Jenkins had complained of harassment, lack of cooperation and surveillance:
This evidence points to but one conclusion, in our judgment. While the Board members are not physicians, it seems quite apparent, even to laymen, that Claimant was seriously disturbed and emotionally ill. For twenty-nine years he had been an exemplary employee. Then, suddenly, in 1964 he displayed feelings of persecution, starting with law enforcement authorities and later expanded to include management and supervisory authorities. Messers. Brink and Dawson wisely recognized that the problem was beyond their capabilities. Medical advice was sought but, unfortunately, the record does not reveal any medical findings. Claimant testified that he was informed, following his hospitalization "there is nothing we have found that you would need to go further". He thereupon returned to work. (Mr. Brink recalled hearing from Dawson that "Jenkins was getting along fine after he was released from the hospital and there was no animosity . . . .")
Regrettably, the improvement did not last. Nevertheless, we are not convinced that discharge was the only action available to Carrier in December 1967 or, indeed, that it was at all appropriate in light of Claimant's life-time of service and obvious illness. There is good reason to believe, in fact, that he was not really responsible for his November 24 actions.
That is not to say, of course, that Carrier is obligated indefinately to retain in active service an employe whose conduct shows such deterioration. It can, based upon proper medical recommendation, remove an employe from service for physical or mental disability. It can help arrange for a disability retirement. And there may be other avenues open. This Board, of course, cannot require Management to take any particular course of action. We do hold, however, that under the circumstances of this case, the discharge action was arbitrary and therefore cannot be sustained.
We do not know what Claimant's state of health may be today; more than two years has passed since his discharge. In sustaining the claim, therefore, we must also note that we are not diminishing Management's right to make a determination concerning Claimant's fitness to continue in his regular position. That determination, however, is to be made after restoring to Mr. Jenkins all his contractual rights.