STATEMENT OF CLAIM: Claim of Joint Council Dining Car Employees' Union, Local 354 on the property of Missouri Pacific Railroad Company for and on behalf of Sam Wright and R. H. Merritt, Waiters, that they be reinstated in Carrier's employ with seniority and vacation rights unimpaired and compensation for net wage loss suffered from September 24, 1957, account Carrier's dismissal of claimants in violation of agreement; and claim for and on behalf of Bennett Reeves, Chef Cook, that he be compensated for net wage loss suffered account 90 days suspension imposed by Carrier on September 24, 1957; all discipline being assessed by Carrier in violation of agreement and being arbitrary and discriminatory action by Carrier.
OPINION OF BOARD: Under date of September 10, 1957, the Superintendent of Carrier's Dining and Parlor Car Service notified Claimants, Steward C. R. Parker, Waiter D. Matthews and Second Cook L. Bowden, all members of the crew on dining car 846 on August 19, and 20, 1957, the dates when Claimants Wright and Merritt were alleged to have served and collected money for meals without giving to or receiving from the customer the necessary meal checks, in writing, as follows:
Notice was sent by registered mail. Return receipt requested. Receipt of notice is admitted.
Investigation was subsequently held on September 18, as a result of which Claimants Wright and Merritt and Second Cook Bowden were dismissed from service. Reeves was found guilty of aiding and abetting violation of Carrier's rules and given a 90 day suspension, and as noted his claim is for wage loss during that period, and Bowden's discipline was reduced by agreement to a 90 day suspension after Employes agreed to withdraw his pay for time lost.
We dispose of the Reeves claim by saying his appeal was not taken within the 30 day limit allowed by Rule 17 (i). Award 8297.
Steward Parker's case is being handled by another Board and we are not advised as to its status.
This presents an awkward situation to this Board, because it appears there was a conspiracy here because the Claimants, if guilty of accepting money for meals without giving meal checks therefor, had to have help from other members of the crew, but since both parties agree that our task is only to review the record to determine whether the finding of guilt as to Wright and Merritt was justified, we proceed accordingly.
All of the members of the crew were present and testified, but it is perfectly apparent that there was an understanding among them as to what their testimony was going to be with the result that proof that Claimants actually served Mrs. Witsell is not established aside from her statement except by inference.
Employes are contending that the Carrier violated Rule 17, Sections (a) and (b) which read respectively as follows:
As to the evidence we say that Mrs. Witsell's statement was admissible. See Awards 2770, 2793, 2978, 3125, 4865, 4976, 6067, 6185 and 8300. That statement in itself, if believed, is sufficient to justify the finding of guilt. The fact that Mrs. Witsell was not present at the hearing was not prejudicial. Employes had her name and address, and the officer in charge of the hearing offered to adjourn the meeting long enough for employes to get in touch with her if they so desired, and there is nothing in the record to indicate (aside from Claimant's denial of course) that her statement was unworthy of belief except the suggested inference from the fact that she was riding on a pass, i. e., that she was under possible influence of the Carrier.
The record shows she occupied Pullman space on .the train on the dates in question. While this does not prove she ate in the diner it would be a reasonable deduction that she did. Both Claimants admit assignment as waiters on the dining car on the dates in question, but do not remember Mrs. Witsell and he son. Claimant Wright was assigned to the table where Mrs. Witsell said she sat.
The record also shows that the food costs in connection with the cash receipts on this diner on this run were unusually high, as compared with other dining cars on the same run during the period embracing August 19 and 20.
Further analysis of corroborative evidence is not necessary. We have given enough to give credence to Mrs. Witsell's statement.
We fail to see how the charge, quoted above, could be any more specific. It gives the number of the train, the number of the dining car, the dates, failure to give Com-2 meal checks, and designating the instructions violated.
We have already indicated that they were given the opportunity to go and see her, before proceeding with the investigation, and their not accepting the offer consituted a waiver of their right to cross-examine her on her statement. (Assuming it to be a contractual right, which we do not concede.)
Finally, as to the alleged discrimination in displine. As already noted, the Steward's case is not before us, so we can make no comparative quantitative evaluation of his responsibility or discipline.
Assuming, as the parties do, that the rest of the crew was involved in this conspiracy, there is enough in the record to indicate a basis for lighter discipline as to Bowden and Reeves, than was accorded to Merrittt and Wright. As to them, we cannot say, in view of their past records, that the Carrier acted arbitrarily or capriciously, nor that the discipline imposed was excessive.
Cited on behalf of the Employes was Award 8713. We have examined both the docket and the Award with great care and while this referee feels the correction of the discipline in that case was justified, he feels the failure to have the complaining witnesses present under the circumstances therein disclosed should not have been seized upon by the referee in that award as the major premise for his action.
Employes here were charged with violation of the Carrier's instructions, with which employes are bound with notice, because they must acknowledge receipt of the same by signing therefor when first employed by the Carrier. Said instructions include the advice that punishment for the violation thereof will be drastic.
Employes well know that the Carrier cannot take these discipline cases resulting in dismissal lightly because if any employe can prove he was wrongfully dismissed, the Carrier subjects itself to a possible action for damages, such as the one that happened to an Eastern Carrier a few years ago when the employe of a dining car recovered judgment for about $$125; 000.00 against it. While this is not a matter of record in the instant case it was a matter of common knowledge nationally, through the press, at the time it happened.
We conclude that the finding of guilt in this case is supported by competent evidence and that the discipline was justified.
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 8829-s 305