STATEMENT OF CLAIM: Claim of the General Committee of The Order of Railroad Telegraphers on the Delaware and Hudson Railroad, that:
OPINION OF BOARD: Claimant here was dismissed from service and is here seeking reinstatement with seniority rights unimpaired and compensation for all wage loss, including express commissions.
Claimant here was about 60 years of age at the time a chain of events started that eventually led to his discharge. He had some 42 years seniority, without an apparent blemish on his record when he was placed under arrest on August 2, 1954, on the charge that he molested a child on July 24, 1954. Between August 5, 1954, and October 5, 1954 he was in the New York State Hospital. When released on October 5, 1954, he was declared sane. He was admitted to bail on October 7, 1954. On October 9, 1954 Claimant advised Respondent of his availability, and was advised, under date of October 20, that he stood suspended, as of August 2, 1954, said suspension to be effective until further notice. Claimant was subsequently indicted on three counts, namely, (1) carnal abuse of a child (2) assault in the second degree and (3) impairing the morals of a child. Claimant was tried on the above charges on January 7, and was found "riot guilty" on all three counts of the indictment.
On March 4, 1955, Claimant was notified that a hearing would be held to determine Claimant's responsibility for violation of Rules 810 and 812 of the operating Department rule 1 of Instructions to Station Agent, as well as conduct unbecoming an employe, on Saturday .July 24, 1954.
"THE DELAWARE AND HUDSON RAILROAD
CORPORATION
Hearing on the above charges was held on March 22 1955 and on April 29, 1955 Claimant was notified that he stood discharged. This Notice of Discharge read as follows:
"THE DELAWARE AND HUDSON RAILROAD
CORPORATION
It is alleged that the Respondent's actions were arbitrary and capricious in that Claimant was tried and found guilty of the same charges for which he had been tried and found "not guilty" in a Court of Justice. It was pointed out that while Claimant's suspension pending the aforesaid trial was in all likelihood proper, there was no justification for a hearing on the property after Claimants innocence of the same charges contained in the Notice of Hearing had been established. In connection with the charge that Claimant had allowed individuals in parts of the station where they should not have been, the Organization pointed out that this condition was present at all small stations on the property, and no discipline had ever been imposed on any employe for permitting such conditions to exist. It was asserted that while Claimant was admittedly guilty of violation of existing instructions, their (instructions) non-compliance ;with did not in and of itself justify more than a written reprimand, and most certainly not the discharge of an employe with a perfect record for 42 years.
The Respondent asserted that this hearing and subsequent discharge of Claimant had been accomplished in strict accordance with Article 20 of the effective Agreement but that this claim was not presented in accordance with paragraph (e) of Article 20 or Section 3 first (i) of the Railway 7832-4 405
Labor Act. The Respondent took the position that the initial suspension and subsequent discharge of Claimant was justified by substantial evidence adduced at the hearing held on the property on March 22, 1955. It was further asserted that a fair and impartial hearing had been conducted and this Board could not properly vacate the discharge of Claimant because such act would have the effect of substituting the Board's judgment for that of Management.
We likewise cannot find that Respondent violated either the letter or intent of paragraphs (b) and (d) of Article 20. The suspension of Claimant as of August 2, 1954 was not, in light of the seriousness of the charges against Claimant, a violation of paragraph (b). It is noted that paragraph (d) contains no time limitations. The only requirement is that each step in the proceedings will be handled with as little delay as possible. It is noted that both parties either requested or acquiesced to a delay in the hearing that was finally conducted on March 22, 1955. Neither parties' rights were prejudiced by the delay, and neither party received or secured any advantage thereby.
Thus we proceed to the propriety of the discipline imposed as the result of the investigation held on the property, on March 22, 1955, in so far as it concerns the charge of conduct unbecoming an employe. This conduct concerns the alleged guilt of Claimant on the same grounds that were the subject of Claimant's indictment and trial before a Jury which resulted in a verdict of not guilty. It is again noted that this investigation was held after the trial above mentioned. The record thereof contain; many excerpts of the testimony presented at the trial. We can find no evidence of record to indicate guilt of claimant that was not adduced at said trial.
The Respondent asserts that inasmucIb as they determined that substantial evidence was resent which warranted the imposition of the discharge, we, this Boar, should not substitute our judgment for that of Management.
Both the Respondent and this Board owe the public an assurance that no employe of a Carrier, who is guilty of the conduct in question will remain in service. Likewise this Respondent and this Board has in its hands the responsibility for the future welfare, economic and otherwise, of this Claimant.
We are of the opinion, and so find and hold that the discharge of Claimant on the charge of conduct unbecoming an employe was unwarranted and beyond authority of the governing agreement, and therefore arbitrary and capricious. This finding is predicated on three grounds, namely (1) no new evidence of guilt was presented at the investigation, (2) the Jury which heard substantially the same evidence had an opprtunity of observing the demeanor of all witnesses and pass upon their credibility, and (3) the Respondent in effect substituting its judgment for that of the Jury.
In so far as the charges that Claimant violated rules of the Carrier when he permitted individuals to enter portions of the station contrary 7832-5 406
to instructions, the record indicates that Claimant freely admitted this dereliction of uty While some discipline was justified for this violation, a penalty of discharge would be excessive and unreasonable, particularly in view of the Claimant's previous 42 years of service without a blemish.
The record indicates that the delay in conducting the investigation was due in part to either a specific request of one or the other of the parties, or by a silent but tacit agreement that additional time was needed to marshal facts. In view of this fact, together with the admitted guilt of Claimant, we cannot find that the retroactive features of Claim 3, as set out above, should be made valid as of October 9, 1954. Rather we conclude, and so find and hold that all compensation paid Claimant should be retroactive only to March 22, 1955, such date being the date of hearing; accompanied with the restoration to service of Claimant to service with seniority and all other contractual rights unimpaired.
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 Carrier violated the Agreement to the extent indicated in the above Opinion.
Claini sustained to the extent indicated in the above Opinion and Findings.
The finding of the Majority is tersely stated in the following paragraph of the Opinion of Board:
The findings announced above are contrary to fact and to law. At page 41 of the transcript appears Question 507 of the investigation hearing, put by the victim's mother, Mrs. Barber, to the Claimant's Attorney, Mr. Allen Light: 7832-6 407
Obviously such testimony even if it were attempted to be introducted at the criminal trial, would have been barred by the hearsay rule of evidence but criminal rules of evidence do not govern disciplinary hearings conducted by the Carrier and hence it was admissible there. Consequently, contrary to what the Majority found as the first ground upon which to predicate its award, there was new evidence bearing directly upon the Claimant's guilt which was presented at the investigation, but which was not heard at the criminal trial. The astounding fact is that Mr. Light did not even so much as question the truth of the above quotation. Furthermore, Air. Light, the Claimant and the General Chairman all attested that the investigation hearing was fair and imparial. (p. 169)
The third ground upon which the majority relies to support its findings is that the Carrier substituted its judgment for that of the Jury. First of all, we again remind the parties of the law on such a proposition.
Secondly, the Carrier could not have substituted its judgment for the Jury's because the Carrier did not consider the same question as the Jury. The Jury had before it the question of the Claimant's criminal responsibility. The Carrier would have exceeded its authority if it had attempted to conduct a criminal trial.
The second ground upon which the decision of the Majority rests overlooks a very fundamental point. First, we must recognize that the Carrier did not participate in the Claimant's criminal trial and was barred, as a matter of law, from conducting the same, that being a function of the States Attorney's office. Secondly, the Award foists upon the Carrier, as final and binding, the decision of the Jury. Accordingly, the decision of the Majority robs the Carrier of its fundamental right to judge the competency of its employes. Therefore, the Award is incomplete unless it also absolves the Carrier of the correlative duty upon which that right ;s based, viz., its duty to its patrons, as well as to those engaged in the operation of its railroad, to take care to employ only those who are careful and competent and to exclude the unfit from service. (M. St. P. & S.S. Ay. Co. vs. Rock, 279 U. S. 410).
The Majority has summarily dismissed the fact that the Claimant did not timely Present his claim within the 60-day time limit (Article 20 (e) of the controlling agreement) from the date (most favorable to him) when his claim arose, viz., October 9, 1954 when the first requested to return to work. 7532-7 408
In imposing the standard of proof required in criminal proceedings upon the Carrier, the Referee has completely reversed the position he took in Award 7774, just recently issued.
Furthermore, the Majority have assumed the right to determine the measure of discipline to be imposed upon the Claimant for his admitted violation of three of its Operating Rules.
The Award is not only contrary to law, but also is in conflict with principles established by many previous awards of this Board.