STATEMENT OF CLAIM: The Order of Railway Conductors, Pullman System, claims for and in behalf of Conductor F. A. Coughlin of the ChicagoNorthern District, that:
OPINION OF BOARD: This claim is concerned with the action of the Carrier in discharging Pullman Conductor Coughlin on November 11, 1950. Conductor Coughlin, at the time of the events which gave rise to the discharge, was assigned to Chicago and North Western Trains 511-610, Chicago-Duluth. On August 6, 1950, Claimant was on duty as Pullman Conductor from Duluth to Chicago, Train 510, leaving Duluth at 8:10 P. M. When the train arrived at Solon Springs, Wisconsin, a Mr. J. V. Johnson boarded the train for Chicago. He occupied Bedroom "F" on Car Poplar Court. He was accompanied by a seven years old granddaughter for whom he had not paid the bedroom differential. When Conductor Coughlin checked Mr. Johnson's ticket, $1.38 was collected as the extra charge for the child.
It is alleged that Conductor Coughlin failed to give the passenger a cash fare check; that he failed to report on his diagram the fact that two passengers occupied Bedroom "F"; that he did not report or turn in to the Company the $1.38 collected from Passenger Johnson.
These matters came to the attention of the Company when under date of September 13, 1950, Passenger Johnson reported the matter along with stating his suspicions concerning Conductor Coughlin. Mr. Johnson elaborated upon the occurrences in another communication dated September 27, 1950, upon the request of the Company for further data. Thereafter, on or about October 24, 1950, Conductor Coughlin was interviewed by Company officials, and on November 11, 1950, he was discharged from his position.
The Company justifies its action in discharging the Claimant on grounds of honesty and moral responsibility. To quote:
In deciding this case we must look at the evidence before the Board. Does it support the claim that Claimant was intent upon defrauding the Company? Was this a calculated act of dishonesty on the part of Claimant, or was it a matter of oversight and a violation of certain rules concerning the handling of cash fares?
In our judgment the evidence in the record simply fails to prove that Claimant was intent upon defrauding the Company. Claimant's own story that he simply could not remember the passenger in question and the incident cited, has the stamp of credibility. In evaluating this, it must be remembered that he was not questioned about the matter until more than two and onehalf months had passed, and in the meantime he had undoubtedly dealt with hundreds of passengers which would make it very difficult to remember a particular passenger unless there was some special circumstance to impress it upon his memory. The record does not reveal that Claimant was ever confronted with Passenger Johnson while this matter was being considered so that his memory might have been aided in recalling the occurrences.
The record shows and both parties admit that on the back of the ticket taken from Passenger Johnson Claimant had written 1.20 12 6 which totaled $1.38, the correct amount of fare collected. It does not stand to reason that had Claimant intended to defraud the Company he would have noted the fare collected on a ticket which was admittedly turned in to the Company.
The evidence in this docket leaves much more than a reasonable doubt about the Claimant's guilt of the charge of dishonesty. Certainly no weight can be given to such a statement as that made by Passenger Johnson when he reported that Claimant acted "sheepishly" when the fare was collected. If the Company suspected that Claimant was not properly handling and reporting cash fares, there was every opportunity for a careful check to be made over a period of time. Instead, Claimant was convicted of dishonesty solely upon this one instance when the burden of available evidence indicates an oversight and a violation of rules for handling cash fares.
Evidence in the record does support a finding that Claimant violated the rule which requires the giving of a cash fare check when the fare is collected. It is also clear that his cash fare report to the Company did not include the $1.38 in question. Therefore, some penalty was in order, but dismissal from the service was arbitrary and unreasonable. Claimant's record appears to have been a very good one prior to this incident. The penalty given him was particularly severe not only because of the economic consequences to him, but also in that he was labeled as dishonest and one who would defraud. A man's honor should not be so lightly assaulted when the evidence is so lacking in conclusiveness as is demonstrated in this case.
It remains to be asked, what would have been an appropriate penalty for the violation of the rules and procedure for handling fares? The most extreme penalty which reason and good conscience can support in this case would be a suspension of three months. These are qualities which must be taken into account in the handling of these discipline matters. (Award 5030.)
It is appropriate that Claimant Coughlin be restored to his position with seniority rights unimpaired, and with pay for time lost except for a period of three months.
FINDINGS: The Third Division of the Adjustment Board, after giving the parties to this dispute due notice of hearing thereon, and upon the whole record and all the evidence, finds and holds: 5849-3 468
That the Carrier and the Employe involved in this dispute are respectively Carrier and Employe within the meaning of the Railway Labor Act, as approved June 21, 1934;
That this Division of the Adjustment Board has jurisdiction over the dispute involved herein; and
This Award expresses an opinion that there are mitigating circumstances which now are used to substitute the judgment of the Third Division by modification of the discipline assessed by the Carrier, whose findings of the Claimant's violation of instructions and whose imposition of discipline were declared by the Award to be amply supported by the evidence.
It is submitted that such an Award represents arbitrary action beyond the authority of this Board.
In M.St.P&SSM. Ry. Co. vs. Rock, 279 U. S. 410, the Supreme Court of the United States said:
The Duty of prescribing and enforcing such reasonable rules and regulations cannot be escaped by delegating it to some outside person or tribunal, nor can such outside person or tribunal, having no responsibility in connection with the operation of the railroad, usurp such managerial functions or substitute his or its judgment for that of the Management. For such outside person or tribunal to so act, is to destroy the ability of the Management to maintain discipline. As applied to the National Railroad Adjustment Board, such action would go beyond the authority conferred upon it and violate decisions of the courts.
O. R. C., et al. vs. Pullman Co., No. 616, decided February 12, 1943, by the District Court of the United States for the Eastern District of 5849-4 469
Wisconsin, was an action to enforce Award No. 1482 made by the Third Division, eferee Richards. In holding the Award should not be enforced, Judge Duffy said:
In T. & N. O. R. Co. vs. Ry. Clerks, 281 U. S. 548, the Supreme Court said:
The docket in the instant case cited 308 Awards in which this Division refused to change discipline assessed by Carriers. 157 thereof covered cases in which employes were dismissed for cause. Excerpts are quoted therefrom to show that the decisions therein were based upon a recognition of one or more of the following principles:
The Award in the instant case is based upon Award 5030, Referee Jay S. Parker. The Opinion in Award 5030 shows that the decision therein is based upon no conclusive proof of the charges having been shown and no hearing having been given the Claimant therein on any charge. The factors, supra, on which that Award was based distinguished that case from the instant case in which a proper hearing was held and the record thereof admittedly supports the charges.
Let's see what Referee Parker, the author of Award 5030, would have done in the instant case in view of the accepted facts if he had been Referee herein. Award 5034, in which Jay S. Parker was Referee, involved a similar claim on behalf of a Pullman Conductor who had no previous discipline on his record which was denied. About the only difference between that case and the instant case was that therein the amount of money involved was $6.50 whereas in the -instant case the amount of money was $1.38. The Opinion in Award 5034 contains as follows: