(Advance copy. The usual printed copies will be sent later.)
Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No.
6562
SECOND DIVISION Docket No.
6407
2-NOPB-CM-'73
The Second Division consisted of the regular members and 1n
addition Referee Edmund W. Schedler, Jr. when award was rendered.
( System Federation No.
99,
Railway Employes'
( Department, A . F. of L. - C. I. O.
Parties to Dispute: ( (Carmen)
( New Orleans Public Belt Railroad
Disputes
Claim of !~mployes
1. That under the agreement Carman-Inspector W. J. Reuther was unjustly
dealt with and unjustly suspended from service of the Carrier from
August 21, 1971 through September
4, 19T,-
both dates inclusive.
2. That accordingly, the Carrier be ordered to compensate Mr. Reuther two
(2) hours pay at the pro rata rate and three (3) hours pay at the over
time rate for being ordered by the Carrier to attend an investigation
on August 16, 1971, and eight (8) hours pay at the pro rata rate for
August 23, 24, 25, 26, 27, 30 and 31, 1971, September 1, 2, 3 and 6,
1971,
because the Carrier suspended him as a result of that investigation.
` 3.
That accordingly, in addition to the money amounts claimed herein,
the Carrier be ordered to compensate Mr. Reuther an additional amount
of
6%
per annum compounded annually on the anniversary date of
August
16, 1971.
That accordingly, Mr. Reuther's service record be cleared of any mention
what so ever of the investigation conducted on August
16, 1971.
5.
That accordingly, Mr. Reuther's rights be reinstated unimpaired in regards
to but not limited to, Railroad Retirement Benefits being paid up to
the amounts he and the Carrier would have paid.
in his
name had he not
been suspended.
Findings:
The Second Division of the Adjustment Board, upon the whole record and i
all the evidence, finds that:
The carrier or carriers and the e
mp1aye 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.
Parties to said dispute waived right of appearance at hearing thereon.
j
Form 1 Award No. 6562
Page 2 D2-hOPBN-CM
6737
This discipline grievance arose because of a letter written by Claimant
to the New Orleans Times-Picayune on or about August 3, 1971.
The Claimant identified himself in the letter as W. J. Reuther, General
Chairman, Standard Lodge No. 1233, Brotherhood of Railway Carmen. In order to
understand the nature of this dispute the Board has carefully studied the background leading up to the Claimant's suspension.
By letter dated April 18, 1970 the Claimant communicated a complaint
with the Carrier of certain safety hazards within the shop, to wit:
"There are two spots on track 13 that were dug up by the track gang
but never back filled, large pieces of cement, worn and broken
parts removed from cars scattered from one end of the shop
track to the other.
Several other places on the Belt where the track was dug up but
never back filled, where spilled grain and other matter has been
removed from along side the track and thrown between the tracks.
where Carmen have to step to couple air hose.
Two years ago I reported to Mr. H. 3. Kofoed by phone, about a
water leak along Southern Interchange Track No. 2, when nothing
was done within six months I again reported it to Mr. Kofoed, ...
Only after two men slipped and fell at this spot did some one
spread shells around this leak: As of this date the leak is
not fixed, in fact now there is another leak about a block.
away.
Sometime back two Carmen were injured while trying to pull a
burner cart over large pieces of cement on the shop track,
both men required medical attention, one was held out of
service by the Public Belt Physician for two or three weeks."
In a letter dated May 4, 1970 Carrier's Superintendent J. R. Cootes
answered the various complaints and on July 15, 1970
the
Claimant wrote a second
letter and stated, among other things:
"I have also made a personal inspection of the unsafe areas I
have complained of, and have found them to be in the same _
condition or worse.
Nothing has been done about the water leaks at the Southern
Interchange Tracks.
There is no excuse for having worn and broken car parts,
cement and other debris in the working area for days on
the repir track, this should be removed daily.
- I cannot agree, that the Carrier is making~every effort to
maintain safe working conditions ."
Vol
Form 1 Award No_
6562
Page
3
Docket No.
6407
2-NOPB-CM-'73
By letter dated August 30, 1970 the Claimant communicated the contents
of his correspondence with the Carrier to Mr. G. L. O'Brien., General President
of the Brotherhood of Railway Carmen. Mr.
O'Brien
replied on September 2, 1970
and the last 2 paragraphs of
his
letter read:
"In order to b e helpfrl to you in this matter I would suggest you
again direct a letter to Mr. P. A. Webb, General Manager of the
New Orleans Public Belt Railroad, advising him that unless the
conditions complained of by you with respect to health and
safety of the Members of our Brotherhood are corrected, it is your
intention to spread a strike ballot and peacefully withdraw from
services of the railroad until the conditions complained of are
corrected.
After you take the strike ballot and have the results of the
ballot, I would appreciate you advising my office of the res·ilt,
and if two-thirds of the members involved voted in favor of
withdrawing from the service of the New Orleans Public Belt
Railroad, I will authorize such withdrawal."
By letter dated September 7, 1970 the Claimant communicated with General
Manager Webb_that, among other things, the following items needed immediate
attention:
"l. Removal of waste, trash and grass
in
all working areas.
2. Eating facilities and dressing roans should be kept clean on
a daily basis.
3.
Proper receptacles for waste and cigarettes should be installed
in above areas, and cleaned on a daily basis.
The Claimant closed the letter by setting an inspection date for the facilities
for October 12,
1970
and mentioning the strike ballot and peaceful withdrawal
from services of the Carrier unless the conditions complained of were corrected.
The evidence disclosed that some of the conditions complained of were
corrected; however due to weather problems the Carrier was unable to correct all
the conditions. On December 6, 1970 the Claimant again wrote the Carrier and
complained about the spilled grain problem and a problem of keeping the dressing
roan clean.
On March 26, 1971 an article appeared in the newspaper relating to certain
matters of public interest about the Carrier. In the article there was a comment
attributed to General Manager Webb about a new safety regulation book and the
relevant language in the article read:
Form 1 Award No.
6562 t
Page
4
Docket No.
6407
1
"We ran into all kinds of protest from the unions, because some
of the regulations refer to the demeanor of employees. But we
believe that a man's conduct has a direct bearing on safe operating
conditions". Webb said.
"The rules the Belt Railroad are trying to adopt are those of the
Association of American Railroads.
He explained that the new rules are now suspended until April 1
while the unions review them.
Our main purpose of course is to improve safety conditions on the
railroad," Webb said.
"Commissioner Theodore M. Hickey said, 'We should almost insist -
and I emphasize the ward almost - on getting more safety.
We don't want to antagonize these unions, but I am sure the
AFL-CIO is vitally interested in safety.
I hope we can make it clear to the men we are interested in
their safety, both from an insurance standpoint and a humane
standpoint. I know I hate to see a man in a wheel chair with
two legs or an arm missing.'"
Webb said "he believes the main opposition comes from
the railroad's attempt to institute a new set of rules."
On March 28, 1971 the Claimant wrote a reply to The Times-Picayune
for the March 26 article and among other things, stated:
"On March 2, 1971 the Union Representative met with the Public Belt
Management to discuss their General Order No. 215. In our
discussions, it was explained to management that we took exception
to their General Order No. 215, because,
It was partly in conflict with some of our Union Working.
Agreements which can only be changed as set forth in
Section Six of the Railway Labor Act as amended.-
Partly, because some of it has nothing to do with safety.
For example, Rule
6
of General Order No. 215 states, 'Employes.
must comply with instructions of supervisors and other proper
authority. Affairs of the Public Belt rrrast not be divulged,
nor access to records permitted, without proper authorization.'
General Order No. 215, places the burden of safety on the
employees. Example, in almost all rules the words, 'employees
must, employees are prohibited, employees will report, are
used.'"
Form 1 Award No. 6~6
Page
5
Docket No, b4C7
(, 2-NOPB-CM-' 73
The Claimant's letter gave data showing the date and number of cars
pulled from interchange without inspection or with a penalty defect tag on the
cars. The letter closed with the following paragraphs;
"On March 22 and 23, 1971, N'x. J. Noel Ball, Assistant General
Manager, ordered, that
54
and
65
cars respectively be
pulled
from the LBrA Interchange without inspection. These are only i
a few of the unsafe and unlawful conditions that are practiced
daily and knowingly to the Public Belt Management.
All of the above is in violation of the Federal Safety Appliance i
Act and or the Federal Power Brake Law.
E
There is no way, Mr. Hickey, or anyone else can antagonize
the Public Belt employees with bonafide safety rules. We
hope Mr. Hickey, as a Commissioner and State Senator, will
insist, that the Public Belt Management comply with and
enforce the Federal Safety Acts. i
The March 28 letter was not published in the newslaper; however evidence disclosed
that the Claimant sent carbon copies to Mr. T. M. Hickey and Mr. P. A. Webb, Jr.
I
On t ugust 3, 1971 the Tknes-Picayune published a letter written by the
y
Claimant that stated:
"Since July
14
the Public Belt Railroad has been pulling cars from
interchanges without inspection,, moving these cars across New
Orleans without a brake test and pulling cars with a penalty
t.
defect tag on them, all in violation of the Federal Safety
Appliance Act and Power Brake Law. Some of these cars, are
tank cars, used to transport all kinds of chemicals and gas, and
if one was to derail along the river because of some mechanical defect
f
it could be disastrous.
s
The management of the Public Belt has been cited by the Department
of Transportation's director, Bureau of Railroad Safety, on a
number of occasions for violations of the Federal Safety
Appliance Act and Power Brake Law, yet they insist on violating
these laws.
If General Manager Philip A. Webb, Jr, and commissioner Theodore M.
Hickey were quoted correctly in the article appearing in
The Times-Picayune March 26, Mr. Webb said., 'Our main purpose of
course is to improve safety conditions on the railroad.' Mr. .
Hickey said, 'We should almost insist, and I emphasize.the
word almost on getting more safety.'
i
Award No .6 62
page 6 Docket No. 64
Form 1 07
2-NOPB-CM-'73
"I suggest they stop the unsafe and unlawful practices of pulling
cars from interchanges without inspection, pulling cars with
penalty defect tags on them, issue orders that all Safety haws and
Acts MUST be complied with by ALL EMPLOYES, insist on the use of
blue flags and lights, for the protection and saf°ty of employee
working in the yards AT ALL TIMES. The Pablic Belt employes
want Safe Working conditions all the time, not just when its
convenient. Our lives depend on safety."
The Organization has alleged there were irregularities in the charge
against the Claimant in that he was charged with being "guilty of an action
inimical to the interest of the Carrier". The Carrier did correct the charge and
in the
opinion of
this Board the charge was sufficiently precise that the Claimant
clearly knew the full meaning and implications of the charge. Numerous awards have
stated that the formation of the charge need not be in the technical language of
a criminal complaint. See Awards 3270 (Carter), 11443
(Dolnick),
12898 (Hall),
and 17154 (McCandless).
The Carrier contended they had the right to expect loyalty from their
employees. In support of this contention the Carrier cited. _N.L.R.B. vs. Local
Union 1229 of the International Brotherhood of Electrical Workers, 7 Supreme
Court Reporter, _page 172; Wise vs. Southern Pacific Company, Cour
t of Appeals
of the State of California, First A e.llate District Division 3 filed April 23,
1
9;
Third Division Awards 1 3 3 and 10930; and Second Division Awards.1884, 3253 ,
and
4718.
We will discuss the relevancy of each of these to the instant dispute.
In the Local 1229 case the employee technicians of a TV station
circulated 5000 handbills attacking the quality of the station's programs. The
distribution of handbills took place at a time contract negotiations were taking
place. The attack impugned the quality of the employer's product; the attack did
not relate itself to labor practices, wages, hours or working conditions of the
employer; the attack neither asked for public sympathy nor support for the Union;
the Union was not identified on the handbills; the employer policies attacked
were those of finance and public relations which were strictly management functions.
In the instant dispute the Claimant impugned the Carrier's safety practices
and obviously this was of serious interest to the employees. In the article,
published on August
3
the Claimant identified himself as an officer of a. labor.
union and it is palpably clear to this Board that Claimant was seeking public
support for improvement of health and safety practices on 4,he property.
In
Wise vs. Southern Pacific, the opinion of the court showed Wise was
"inciting litigation against the Company and running and capping for specific
attorneys (in violation of the law), the evidence of his disloyal and hostile
activities received at the time of trial was substantial." It is clear to this
Board that the instant dispute is distinguishable from the Wise case.
In Award
18363
the Claimant deliberately interfered in a matter that was
of no concern to her and in award 10930 the Claimant failed to communicate the
violation of the law to Carrier officials before he communicated :with the police -
he did not give the Carrier an opportunity to make necessary corrections in the
weight
of the vehicle.
4
Form 1 Award No.
6562 E
Page 7 Docket No. 6407
(' 2-NOPB-CM-'73
Awards
1884, 3253., 4718
were similar
to
the Wise case above in that
the Claimant3 were alleged to be involved in some form of barratry or the
Claimant acted as the attorney in an action against the Carrier.
The Board will deny the organization's claim for interest because
interest on a contested claim under a collective bargaining agreement does not
accrue until the matter has reached a final determination in the proper forum
pursuant to
the
terms of the Agreement. See awards
6261
and
6438.
It appears from the reading of the transcript of the investigation' that
the Carrier was particularly disturbed that the Claimant had violated a portion
of Rule
6
of the General Order stating:
"Affairs of the Public Belt must not be divulged, nor access to
records permitted, without proper authorization." .
The Carrier is a tax payer owned institution and in these institutions
the public interest is served only by a full disclosure of the affairs of the
institution. There areo however, a few exceptions. The usual exception is that
personnel matters are conducted in executive sessions and not open to public view.
Also matters whose untimely disclosure would increase the Carrier's cost such
as the purchase of land by condemnation are not open to public. Because of his
position as General- Chairman, the Claimant has a right to criticize the Carrier
and the Claimant should be in a position to make a significant contribution through
_)ublic debate concerning safety in the railroad business. The Carrier should I
wture and protect, not debilitate and eradicate, the General Chairman's ideas.
only if the exercise of these rights by the General Chairman materially and
substantially impedes the proper performance of his daily duties in the shop or .
disrupts the regular operation of the shop should a restriction on the General'
Chairman's rights be tolerated.
It is the majority opinion of this Board that the General Chairman's
criticisms as published in the Times-Picayune were made in good faith with a
sincere concern for safety and health of the employees of the Carrier.
The Agreement was violated in that the Claimant was not suspended for
just cause.
A W A R D
1. Item one in Employe's
submission
sustained.
2. Item two in Employe's submission is modified. Carrier will ofer
to compensate Claimant at 8 hours pay at the pro rata rate for'
August 23., 24, 25, 26, 27, 30, and 31, 1971,
September 1, 2,
3.,
and
6, 1971.
3.
Item three in Employe's
submission is
denied.
. i
I
Form 1 Award No.
6562
Page 8 Docket 2-NOPBNCM-s'77
3
4.
Item four in Employe's submission sustained.
5. Item five in Employe's submission sustained.
NATIONAL WILR04D ADJUSTMENT BOARD
By Order of Second Division
Attest:
Executive
Secretary
National Railroad
adjustment Board
BY: .c.~ ..%t.~, i
Ros Tie Brasch - Administrative
Assistant
Dated
at Chicago., Illinois., this 23rd day of July, 1973.
1