BROTHERHOOD RAILWAY CARMEN OF THE
UNITED STATES AND CANADA (Carmen),
RAILWAY EMPLOYES' DEPARTMENT, A. F. of L. - C. I. O.
EMPLOYES' STATEMENT OF FACTS: Car Cleaner Gerald Bowman, hereinafter referred to as claimant, was an employe of the Port Authority Trans-Hudson Corporation, hereinafter referred to as the carrier. He was employed as a car cleaner with a seniority date of May 12, 1970, and works various tours of duty with relief days of Saturday and Sunday.
On Saturday, August 15, 1970, while on his relief day, he accompanied a friend named G. Daniels to meet some girlfriends who were arriving in the Port Authority Bus Terminal. An incident occurred involving G. Daniels and an individual named Flynn, who claimed he had been threatened with a knife, allegedly in the posse-ssion of G. Daniels. This was later proven incorrect. During this incident, the claimant tried to intercede and explain the story was untrue, and the officer involved called for additional help. When this help arrived, ,they started to manhandle the claimant.
Subsequently, on Agust 21, 1970, the claimant was removed from service without a hearing or investigation. In a letter dated August 26, 1970, the
this issue at this late date in its efforts to reinstate an employe with only three months service whose assaults resulted in the hospitalization of at least one Police Offimr and the injury of another one. The facts in this case do not militate in favor of such leniency.
Although PATH did not act "unjustly" in dismissing the claimant, it is assumed that the claimant in demanding to be "made whole" would credit PATH with whatever earnings accrued to him since the period he has been held out of service. This assumption may be incorrect in light of the claimant also demanding that he be "compensated for all time lost from August 21, 1970."
PATH must, in any case, be credited with whatever earnings or unemployment compensation the claimant received or should have received during any period it may be held that he was entitled to be employed as a matter of leniency or otherwise. In Raabe v. Florida East Coast Railway Company, 259 F. Supp. 351 (1966) the District Judge held that the carrier must be credited with such payments and observed:
In view of the above, it is submitted that there is no basis for the claim and that it should be dismissed. The claimant, after a few months of employment, admitted that he committed acts that would justify the dismissal of a long term employe. There is no reason for him to be reinstated and awarded back pay in light of hiss admittedly atrocious conduct.
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.
The agreement, Section 11, page 22, clearly states that a hearing shall be held in fifteen (15) days.
The Board recognizes that upon mutual agreement, a hearing may be continued.
In this case, the record shows that there was no mutual agreement of continuance.
DISSENT OF CARRIER MEMBERS
TO
AWARD NO. 6300, DOCKET NO. 6175
At he outset, the Referee in Award No. 6300 erred in his finding that: "In this case, the rocord shows that there was no mutual agreement of continuance."
The submissions of both the Carirer and the Employes contained three documents attesting to the fact that the investigation was posponed by mutual agreement. These documents were directed to the Referee's attention in Carrier's brief and in panel discussion, but he chose to ignore them. The Referee's attention was also directed to the fact that the first written record from the Employes with respect to their alleged objection to the postponement of the investigation is contained in a letter from the General Chairman dated June 17, 1971, or almost two months after the hearing was held on April 23, 1971.
The fact that claimant admitted during the investigation that he was convicted in court and fined $100.00 or ten days in jail for assaulting a car-
"The Commissioners of the Port Authority as a matter of policy provide benefits for its employes by according them benefits with respect to group life insurance, hospitalization, surgical and major medical benefits, excused absence, education refunds and military leave. These benefits are accorded Port Authority employes without contractual obligation to them and subject to change from time to time in the discretion of the Port Authority Commissioners."
Rule 11c states that an employe who has been unjustly dismissed shall be `Reinstated in full for all time lost.' I interpret this to mean that he will get everything that he would have received if he had been working.
I consider fringe benefits to be part of the emolument he receives for his work. I do not consider that claimant should be paid the amount that it cost the carrier to give him those benefits, but he should have the protection in the event of a loss.
Section 10b certainly is included in the agreement. It does say that the furnishing of benefits as a matter of policy but not of contractual obligation to the employe, and it is subject to change at the discretion of the Port Authority.
If the Referee had confined his findings to the record and the Agreement Rules, instead of expounding his philosophy as indicated in the above quotation, the claim would have and should have been denied in its entirety.
The authority of this Board is limited to interpreting the Agreement between the parties. The Board is without authority to change the terms of the Agreement. It cannot change the terms of the Agreement by interpretation or otherwise.
What this Board did was simply to ignore the controlling Agreement provisions and find fault with the Carrier's present operation, and then attempt to direct the Carrier's future operation.
The Board should follow the principles of many prior better reasoned awards and refrain from attempting to substitute its judgment for that of the Carrier which, in fact, it has no authority to do.