NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
THE DELAWARE, LACKAWANNA AND WESTERN
RAILROAD COMPANY
STATEMENT OF CLAIM: Claim of the General Committee of The Order of Railroad Telegraphers on the Delaware, Lackawanna and Western Railroad that:
OPINION OF BOARD: On May 16, 1953, Claimant D. N. Cuccherini was working the first shift position at New Milford, Pennsylvania, as part of a rest day relief assignment. While operating an electric interlocking machine to permit passage of train No. 6, Cuccherini struck one of the levers in the machine which caused it to display an incorrect signal. He immediately corrected the error by placing the lever in the position required to take advantage of a 45-second time release element, and then displayed the proper signal. The train was not stopped, although it proceeded on a "caution" rather than a "clear" signal for a period of time, the length of which is not exactly clear from the record.
If the corrective action had not been taken at once, a longer time release element of 4 minutes and 40 seconds would have been in effect and the train would have been stopped. Claimant Cuccherini promptly reported the incident to the dispatcher and explained how he had corrected his error so as to take advantage of the 45-second time release.
On the same day, May 16, 1953, Carrier's Superintendent sent the following message to Claimant:
Claimant requested postponement, stating that he would be unable to have representative available on May 18. On May 18 he received further notice to appear at 9 A. M., Thursday, May 21. (Employes' Exhibit No. 7). The hearing was thus held on one of Cuccherini's rest days. A transcript of the hearing was made and appears in the record. Subsequent to the hearing, a reprimand was assessed against Cuccherim and made a part of his record, May 28.
On June 13, 1953, the General Chairman appealed to the Assistant General Manager-Personnel, requesting that the reprimand be removed and that Cuccherini be compensated for time consumed and expenses involved in attending the hearing. (Employes' Exhibit No. 4). Conferences were held in an effort to resolve this matter, but since these efforts failed, the dispute is properly before us.
The first point of contention is that the notice sent to Cuccherini prior to the hearing was not sufficiently definite to comply with .the requirements of Article 10 (a). This notice, quoted above, was sufficiently clear to make known to Claimant that he was to be questioned relative to the delay on May 16, of train No. 6, and on that aspect of the delay which pertained to the signal at New Milford. We think that little doubt could have been left in Claimant's mind as to what he was to be questioned about. Therefore, we cannot conclude that his notice was inadequate or improper; however, it was less precise than the charge later entered at the hearing.
The second point complained of is that Claimant Cuccherini was not given a fair hearing, in that he and his representative were not allowed to introduce certain factual data for the record which might have disproved Carrier's charge that he had been responsible for delaying No. 6 for as much as 4 minutes on May 16, 1953. This is a serious charge and one which we cannot pass over lightly. The record speaks for itself.
Assistant Superintendent J. F. Scanlon was in charge of this investigation. He opened it by asking Mr. Cuccherini if he had been properly notified. When Claimant's representative sought to put in the record at this point the actual notice received by Cuccherim, Mr. Scanlon refused to accept that as a proper answer to his question and pressed for an oral reply from Claimant. (Tr. p. 1). When the latter acknowledged only that he had received notice to appear at this time and this place, Mr. Scanlon turned to Chief Train Dispatcher B. F. Edwards and asked him to state for the record the purpose in calling Cuccherini for the hearing. After an exchange between General Chairman Slocum and Mr. Scanlon as to whether the notice, as written, was to be made a part of the record, Scanlon asked Edwards to "state the charge, please." Edwards answered as follows: "Train No. 6 on May 16, was delayed 4 mins. due to Mr. Cuccherini not properly lining up the signal for that train which is in violation with Rule 613." (Tr. p. 1). Following this, the written notices which had been sent to Cuccherini were entered in the record.
We note in passing that the charge as stated by Mr. Edwards was not the same, and was more specific, than that addressed to Cuccherlni prior to the hearing.
After Mr. Scanlon completed his questioning of Cuccherini, Mr. Slocum was told that he could ask questions. (Tr. p. 5). The following exchange occurred:
Objection by Mr. Scanlon-I object to that question-make no answer Mr, Edwards.
Mr. Edwards said that he thought there was a copy in the file but could not find it.
Mr. Slocum said-In view of the fact that you have expressed you cannot locate the message-however, having stated that No. 6 did go to Slateford Junction on time we dispute the expression that No. 6 was delayed 4 minutes at New Milford under the normal slow order running procedure of No. 6. For instance, on the following day No. 6 with everything clear left Binghamton 4 minutes late and passed - - -
Objection by Mr. Scanlon-I object to that question. We are talking about May 16th and not May 17th.
We search the record in vain for proof of the Carrier's charge that Mr. Cuccherini was responsible for delaying No. 6 as much as four minutes on May 16, 1953. Whether Cuccherini's admitted error delayed the train 45 seconds, a minute, two minutes, or four minutes, is not established. The hearing developed into a heated argument first over Mr. Scanlon's refusal to permit Mr. Slocum to get into the record information to the effect that No. 6 was no later than usual at that point in its run on May 16; and second, over the question as to whether the hearing had been fairly conducted. (Tr. pp. 6-11).
That Claimant made an error, he acknowledged. That this error caused some delay to No. 6 on May 16 has not been denied. That this train was due to pass Cuccherini's station at 1:28 P. M. and actually went by at 1:35 P. M. Claimant stated for the record. (Tr. p. 4). However, the record also indicates that No. 6 was delayed on that date for other causes than Cuccherini's error. In fact it appears from the record that for several days No. 6 had been passing this point a few minutes late and continued to do so after May 16.
Carrier's representative at Cuccherini's hearing was so intent upon keeping out of the record evidence that would show that No. 6 was regularly running through New Milford five or more minutes late that he failed to get into the record adequate proof of the charge which Mr. Edwards stated. The latter specifically charged Cuecherini with causing No. 6 to be delayed four minutes on May 16. (Tr. p. 1). Yet when asked if No. 6 turned in a message at Scranton to the effect that it was delayed 4 minutes at New Milford for signal, his reply was "No sir". When asked what delay report was turned in, he admitted that the report said "Delayed both for slow order at Conklin and for signal at New Milford". When asked if he could produce this delay report for the record, Mr. Edwards said he thought there was a copy in the file but he could not find it. (Tr. p. 6).
The pertinent provisions of the Agreement are Paragraphs (a) and (f) of Article 10, as follows:
"(a) An employe will not be suspended (except suspension pending hearing), discharged, or otherwise disciplined without a fair and impartial hearing which shall be held within ten days of the date on which the Superintendent first had knowledge of the offense for which suspended, discharged or disciplined. At a reasonable time prior to the hearing the employe will be apprised in writing the precise charge against him. The employe shall have reasonable opportunity to secure the presence of representatives and witnesses .... (Emphasis added.)
Claimant was charged with delaying train No. 6 four minutes on May 16, 1953. There is no proof in the record that he was responsible for a delay of such duration. He and his representative were denied the right to establish what we think was pertinent evidence in this case. The one way in which it might have been possible to establish with reasonable accuracy just how much or how little delay Cuccherini's error amounted to on the day in question was ruled out as irrelevant. It was known that there was a slow order at Conklin Little Creek Bridge, which caused this and other trains to move at a reduced speed for some distance. The establishment of an approximate amount of time for these delays would certainly have thrown much light on the subject at hand in this investigation. To deny Claimant's right to have such evidence considered was to deny him a full opportunity to be heard. Thus we cannot conclude that Carrier proved the charge it stated against Cuccherini. Nor can we conclude that the hearing was conducted with reasonable fairness.
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 Carrier did not establish proof of the charge as stated at the opening of the hearing.
That Claimant was denied the right to enter pertinent evidence for the record and was thus denied his rights under Article 10 (a) of the Agreement.
That Claimant was required to appear on his rest day and thus incurred expenses and loss of personal time.