STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood, that:
OPINION OF BOARD: About 12:13 P. M., July 29, 1953, in the vicinity of Chewacla, Alabama, the ninth and tenth cars (Cafe-Lounge DC 4001-Pullman Valley Pass) of first class passenger train No. 10, The Seminole, were damaged and some personal injury sustained as the result of their derailment. A separation occurred between the eighth and ninth cars permitting the engines and eight cars to remain on the track. A further separation occurred between the derailed cars, the cafe-lounge car going over and coming to rest on the left side about 540 feet east of the point of derailment. The Pullman car came to a halt at about an angle of 15 degrees.
Unless, as found and determined after an investigation on the property and occurred in by ICC Report No. 3531, the derailment was account of insecure condition of the track, the cause of the accident remains unknown and not determined.
The case is here for review because claimant was held accountable for rules violation in connection with the accident and has been dismissed from service. Ordinarily the Board will not interfere with discipline imposed if the evidence reasonably tends to support the Carrier's action. Our powers of review do not permit the substitution of our judgment for that of the Carrier and it is not right that we should say what we might have done on the facts of the case if it had been our duty to make the decision in the first instance. Our only concern is whether a grievant has had a fair and impartial hearing on the facts of record and as provided for by Rules of Agreement.
In the instant case we have a record of 265 pages, including 127 pages of transcribed testimony and recorded proceedings, which puts us on notice, at the outset, that substantial rights of Claimant are at issue on
a claim that he has not had that fair and impartial hearing to which he is entitled under the investigation rules of the Agreement. Consequently there is a double burden upon the Board to uphold the Carrier's action if the facts warrant, and, on the other hand, to set aside the discipline if Claimant's rights have been prejudiced by failure to abide by the Rules of Agreement, The conflict is readily apparent but, in the face of the apparent conflict, the Board, at times, feels under compulsion to set aside discipline due to procedural defects of record. We do not always find that compulsion as strong, though, in aggravated cases of proven guilt as we do if there is some uncertainty that the punishment is just from the standpoint of the record as a whole. for reasons we shall explain.
Procedural rules of these Agreements are for protecting the rights of the innocent as a general proposition and we do not look with favor upon them being for shielding the fault of the guilty, if guilt is clearly proven. It serves no purpose to direct that one who is obviously at fault for a serious rules violation be reinstated if he has had the full, fair, and impartial investigation to which he is entitled except for failure on some one count alone to observe all investigation rules with meticulous care. On the other hand, it is just as possible for the employe to be the victim of arbitrary and capricious discipline or bad faith where all procedural rules have been observed as in the case where they are not, so in the end there is no real substitute for considering the merits of the case along with those procedural defects in the record when searching for prejudicial error, and in attempt to do full justice to all the rules in effect on the property.
If the above approach is more generally adhered to there will be greater validity in and to all the rules, and less probability of the Board unwittingly compromising the position of poth parties in order to do as little harm as possible to either. With all the foregoing in mind we have carefully reviewed this entire docket for that prejudicial error, if any, which will entitle Claimant to reinstatement. Our review has gone as much to the facts of the case as to claim of defect in the investigation.
Pursuant to notice dated August 2, 1953, given to Claimant and requiring him to appear at the time and place stated, to answer for his alleged fault with reference to the derailment the investigation was opened by reading the heading of the investigation which is, in part, as follows:
Prompt objection to the investigation proceeding on the opening statement above quoted was interposed by Claimant's designated "counsel
and announcement was made that Claimant would not participate unless the specific charge against him was withdrawn. This objection was resolved when the presiding officer stated on the record:
Rule 13 (b) of the Parties' Agreement, among other safeguards, provides that no employe shall be discharged or disciplined without a fair hearing and that the employe will be informed in writing of the precise charge against him. We agree with Petitioner that the requirement for an employe to be advised in writing of the precise charge against him is unquestionably a pre-requisite to invoking a penalty.
Whether a penalty has been assessed without notice of the precise charge, and, therefore, asssessed in violation of the clear and unambiguous terms of Rule 13 (b), is what we are called on to decide, along with a determination which must be made as to the sufficiency of the proof for establishing 6919-4 221
violations on Claimant's part. We think the two are inseparable for purposes of knowing to what extent, if any, Claimant in this case has been prejudiced by action of the Carrier in the conduct of the investigation and by imposing discipline under all the facts and circumstances of the case. We shall turn our attention first to the matter of proof.
On the day in question Claimant, as foreman, was directing the work of six sectionmen in renewing ties on the curve on which the accident occurred. The process was to remove sufficient ballast at the location of each tie to permit the removal of the tie. Spikes were then pulled and tieplates removed. It does not appear that the rails were raised high enough to disturb the adjacent ties in the ballast. As each tie was removed a new tie was immediately put in place. After tieplates were applied and placed on the new ties sufficient ballast was tamped under the ends of the ties to raise the ties against the bottoms of the rails. We digress for the moment to lay a predicate for testimony to be later quoted verbatim.
Claimant acknowledges that he was working under Special Instructions contained in Division Engineer's letter of April 2, 1953, file 1547-RC (quoted above) and that he had full knowledge and information about same. The weather was hot as usual in this section of the country in late July and early August. In three hours of the morning, from 7:30 A. M. to 10:30 A. M., the temperature had risen from 76 degrees to 83 degrees and was still climbing. During the middle part of the day it was in the 90's. "It was unusually hot." From this, we feel privileged to find and conclude that the written instructions including the next quoted paragraph thereof, were in full force and effect. We quote:
Claimant's own testimony convicts him of ignoring instructions intended to assure the safety of work for protection of passengers, freight, equipment, and those of the operating crafts whose life and limb are entrusted to the care of their fellow workers along the line of road. We quote:
We do not know how a more clear case of violation could be shown. We think the violation does not stop with the instructions, but goes to the very heart of Rule 1, General Instructions, quoted above, and again quoted, in part, for emphasis, viz:
When the derailment occurred, the crew had taken off for lunch with full knowledge that a crack passenger train was due to run over this section of track. Trains were running without slow orders. Without protection of any kind the passenger train hit the track doing almost the maximum permissible speed of 60 miles an hour.
In the face of what appears to us to be negligence, Petitioner argues that Claimant was not at fault for the accident. Serious question could be raised about the right of Petitioner to require proof that the violation in question contributed to the accident on a record that speaks unmistakenly of failure to observe all possible precaution for safety and a wreck having resulted.
Argument such as that now urged loses sight of the inviolable character of safety rules and instructions bearing thereon. In addition to the stake that all have in safety, the rule and instructions in question are promulgated as much in the interest of those like Claimant, as for those who are threatened with loss and injury by reason of a misap occurring. Compliance here would have left the Claimant absolutely free of any possible fault and no blame could have been laid at his door, for a wreck yet unexplained if his negligence did not at least contribute thereto. The point is that rules and instructions like those at issue are for the protection of the worker in connection with his work performance and, if observed, he is not otherwise called to account. 6919-s 223
But in view of Claimant's honest belief, shared by his able "counsel", that he already has been mistreated by allegedly having been denied a fair investigation on the property, we will not give him the short answer here and say, he should not have done it.
In an opinion already longer than usual and growing still longer, we can only touch upon the remaining high points of his defense, but we ave overlooked nothing that would inure to his advantage in dealing with the merits.
A short time before the derailment of the cars in question train 29, a west-bound freight out of Columbus consisting of 73 loads, 4 empties, 4012 tons, powered by three diesel engines, at the time running 0 to 35 miles an hour, passed over this same track without mishap and it appears that the track remained in normal alignment. Petitioner thinks this is a circumstance in Claimant's favor. To us this seems to be only another link in the chain of damaging circumstances. Once over a disturbed and loosened track structure, a moving train added to the insecure condition of the track and all taken together, the track structure did not provide normal resistance to the lateral stresses exerted by the movement of the passenger train on the curve at a maximum permissible speed for a sound track.
Petitioner would have us find that the accident just as readily could be blamed on a defective car, defective equipment, or a defective air application. For us to adopt any such theory there must be irrefutable proof to support it in order to lay aside the conclusion expressed in the preceding paragraph which we consider supported in fact and a fair deduction from all evidence.
It appearing, however, that others of unquestioned integrity and most qualified to know that about which they speak, in the persons of the Division Engineer, and the Engineer Maintenance of Way, may be of an opinion contrary to ours and that of the Carrier Officers, who fix the blame in the first instance with no little support from the ICC, their testimony will bear close scrutiny.
From reading the Division Engineer's testimony in the record, we have no doubt that he was being eminently fair and was conscious, at all times, that a careles opinion expressed by him, if unfavorable to Claimant's cause might do irreparable injury. He gives only guarded opinions, although at one place in the record he does say that he does not believe the track was weakened by work done by the section foreman that morning to extent of being unsafe.
Whatever support there is in the testimony cited by Petitioner for Claimant's cause, and we do not take that testimony lightly as shown by the extent quoted and the pains we have taken to analyze and to weigh it, there is only this remaining to be said: It is the expert opinion of a qualified witness It is not to be and has not been lightly regarded. It is not binding and is only persuasive to whatever extent it squares with all the other proof.
On the record, as a whole, the triers of the fact who had the testimony under consideration in the first instance did not find it of sufficient weight to excuse Claimant from fault. The witness did not see any excuse for Claimant violating instructions and rules of safety. We share both views.
All theory about an equipment failure and what evidence there is to support it is offset by positive proof to the contrary. We find nothing in the record before us on which to base a positive finding that defective air application was involved.
We think it is now demonstrated that a conscientious attempt has been made to comply with Petitioner's request that the Board carefully review and analyze the testimony. The results of that effort have been to leave us with the positive conviction that there is no basis for holding the proof insufficient to warrant dismissal.
Now being satisfied that proof of guilt is absolute, it remains to be said whether Claimant was at some disadvantage in his efforts to meet and counter that proof. The proceedings were highly irregular and if there were more question of guilt it would be our bounden duty to lend whatever force there can be in a sustaining award to right the wrong. But guilt having been established beyond a peradventure of doubt, there must be some showing made in the record of prejudice to substantial rights of Claimant that would tend to prove there has been a miscarriage of justice.
As heretofore indicated if Claimant had never been put on notice of the specific charges lodge or to be lodged against him, there would have been a failure of due process and he would have been entitled to reinstatement no matter how strong the proof of guilt or how grave his wrong. Csls-s 226
But Claimant knew the specific charge with which he was confronted or to be confronted well in advance of the investigation. What now concerns us is whether there was anything about a conditional withdrawal of the charge that worked to his detriment, placed him in needless jeopardy, or put him to any disadvantage in submitting to the investigation pursuant to a stipulation that the record about to be made, could be used against him. According to the only protection provided by the stipulation, Claimant must have known that the knife hanging over his head was supported only by a slendar thread of an agreement, made outside of and having no support in the Rules of Agreement.
Because of what, at least, amounts to irregularity in the investigation on the property, we have looked with a critical eye to every phrase of the proceedings, but we find no prejudice to Claimants rights, for reasons hereinafter stated.
It readily appears that the investigation was conducted more for the purpose of ascertaining the cause of the accident than to fix blame for same in strict accordance with Rule 13 (b). But a review of the entire record discloses that this works more to Claimant's advantage than to his disadvantage.
Despite what is argued in the docket there is no showing that witnesses have tried to shift the blame as a matter of self protection and in their own interest, in keeping with a tendency to do so on the part of one or more of those jointly charged and called to account in the usual investigation.
Although representatives of other crafts were quick to defend against any implication of wrong-doing or involvment no one pointed an accusing finger at Claimant. To the contrary, the Division Engineer, the Engineer, Maintenance of Way, and most of all others, by their estimony were most fair to Claimant in every way. We are impressed that everyone testified with forthright candor, and, in that respect, Claimant especially is entitled to commendation for his honesty and truthfulness. To now say, as we might, that he testified as he did because he did not stand charged, due to conditional withdrawal of the charges, would be to detract from his integrity and honesty of purpose, by implying that he might have testified differently had the investigation proceeded strictly in accordance with the notice. We will not impune Claimant's integrity or his honesty of purpose by making a finding that could be so construed.
We are impressed also with the fairness shown by the hearing officer in presiding over the investigation. The manner in which he met the objections of Claimant's "counsel" speaks only of a disposition on his part to have it known that Claimant was not under undue burden of having his guilt prejudged. Claimant was ably represented by "counsel" of his own choosing. All questioning of witnesses, some 25 in number, is free of any and all showing of bias, prejudice, or atempt to prejudge guilt. Every attempt appears to have been made to try to ascertain the true cause of the derailment. It only happens that a diligent, fair, and impartial attempt to ascertain the cause develops responsibility or rules violation and failure to obey instructions chargeable to Claimant.
We find that a full, complete, and thorough investigation was made of all facts and circumstances surrounding and bearing on the mishap. One of Claimant's chosen representatives states our position and our appraisal of the record when, at the conclusion of the hearing, he was asked:
Finally we deem it most unfortunate that the parties are in disagreement about whether "joint conference" was held at the completion of the investigation as stipulated and agreed on the record. Those parties who made the agreement should know and are alone bound and we must leave it to their integrity as to whether the agreement has, in fact been kept. It poses enough difficulty for this Board to deal properly with Rules of Agreements and we would only borrow trouble should we undertake to police collateral agreements and undertakings. All such matters rest in good conscience with which the parties themselves mast live, without Board intervention. We do not undertake to pass judgment on who is right and who is wrong with respect to the controverted question of whether the agreed on conference was, in fact, held. The claims will be denied.
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:
That the Carrier and the Employes involved in this dispute are respectively carrier and employes 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
That .the dismissal of Claimant was not in violation of the bargained Agreement.