Docket No. CL-10704
NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Francis B. Murphy, Referee
PARTIES TO DISPUTE:
BROTHERHOOD OF RAILWAY AND STEAMSHIP CLERKS,
FREIGHT HANDLERS, EXPRESS AND STATION EMPLOYES
THE UNION TERMINAL COMPANY (DALLAS, TEXAS)
STATEMENT OF CLAIM:
Claim of the System Committee of the
Brotherhood of Railway and Steamship Clerks, Freight Handlers, Express and
Station Employes, that the Carrier (The Union Terminal Company, Dallas,
Texas) violated and continues to violate the agreement extant between the
parties in that:
(1) On November 12, 1957, the Carrier dismissed and separated from its service Red Cap Coleman Tucker, Jr., on unproven
charges that he failed to attach Red Cap checks to certain pieces of
baggage prior to moving them; and
(2) The Carrier failed and refused to make investigations
which, if done, would have proven conclusively that the charges made
and the action taken were without foundation; and,
(:3) The Carrier shall now be required by an appropriate
award and order of the Board to reinstate Red Cap Coleman Tucker,
Jr., to its service with all seniority and vacation rights unimpaired,
and Red Cap Coleman Tucker, Jr., shall be paid for all time lost.
OPINION OF BOARD:
The Claimant was a Red Cap with approximately eight years of service prior to his dismissal on November 12, 1957. His
years of service familiarized him with the instructions and rules governing
the handling of hand baggage to and from the trains. On July 18, 1955,
Circular No. 10 was reissued and provided in instruction No. 2:
"Red caps will when receiving baggage from passengers for
handling either to or from trains SECURELY attach his check or
checks to the piece of pieces of baggage presented before moving
* * *." (Emphasis added.)
(48611
8845-2
487
The concluding paragraph of this circular read
Red Caps are forewarned:
"*
* * that it will be sufficient cause for dismissal for any Red
Cap handling baggage without checks placed on the baggage
as outlined in Paragraph 2 of this Circular:"
On
November 9, 1957, the Claimant was observed moving baggage to
the cab stand. This baggage-twelve pieces in all-was the property of three
different passengers.
An inspection of this baggage by Assistant to General Manager Thrower,
who had gone to the cab stand, was made in the presence of the cab starter,
a Mr. Greenwell, and revealed that five of these twelve pieces of baggage were
not tagged in accordance with the above instructions. The failure to tag
these pieces of luggage was called to the attention of the Red Cap, Mr. Coleman
Tucker, Jr. He immediately affixed three tags to the three pieces of luggage belonging to the first passenger, and shortly thereafter, in the presence
of Mr. Thrower, he tagged the remaining two bags and delivered them to
their owners.
Three days after his failure to tag these bags it was brought to the attention of the Carrier, and Claimant was notified of his dismissal from the
service. On the following day, November 13, 1957, Claimant personally
requested that an investigation be convened to reconsider his dismissal.
In compliance with this request and under provisions of Agreement
under Rule 13, Claimant was notified that his requested investigation would
be held and would consider his alleged failure to tag the five pieces of luggage
in question. At the same time he was also informed of his right to select
a representative of his choice and that he could produce any witnesses that
he might desire.
During Mr. Tucker's appearance as a witness, he admitted that he had
five pieces of untagged luggage on his cart on the day involved as reported
by Mr. Thrower. His only explanation as to why there were no tags on
this luggage was that the tag somehow fell off of one of the pieces of luggage, that the tags for two of the bags were mistakenly affixed to two
other bags which bad already been tagged, and that he did not have sufficient
time to tag the remaining two bags because they had just then been placed on
his cart by a passing Pullman porter.
So far as the first three bags are concerned, Messrs. Thrower and Greenwell, both testified that none of the other nine bags on Claimant's baggage
had two tags on them, and that there was no evidence indicating a tag had
fallen off one of these bags. With respect to the remaining two bags
Messrs. Thrower and Greenwell, both testified that these bags were on
Claimant's cart when he pulled up to the cab stand. They denied that
these bags were placed on the cart at the cab stand by a Pullman Porter.
During the investigation the officer
in
charge agreed to recess the
investigation so as to give the Claimant an opportunity to produce this
Pullman porter but Mr. Tucker's representative replied:
"As far as we are
concerned, we are ready to close the case."
This was not the only instance during the course of
the investigation that
the Organization indicated it had no desire to produce witnesses. The record
shows that the following testimony was given by Mr. Tucker.
8845-3
488
"Q-Do you have present any witnesses, Mr. Tucker?
A-No.
Q-We understand that you don't desire to have any witnesses, is that correct?
A-No witnesses.
Q-Are you ready to proceed with the investigation?
A-Yes."
This investigation resulted in a decision slated November 19, 1957, upholding Claimant's dismissal. This decision wrs appealed, and during the
hearing held on this appeal the Organization requested that the contents of
the following affidavit be made a part of the record of investigation:
"State of Texas
County of Dallas
"Before me, Myrtle Calhoun, a Notary Public in and for the said
County, on this day personally appeared Jos. Redmond known to
me to be the person whose name is subscribed to the foregoing instrument and acknowledged to me that the following statement is true.
"On November 9, 1957, I arrived on the Santa Fe No. 116
Pullman Car DC3, I unloaded my car and a passenger left two
pieces of baggage on the car DC3. I tried to catch the passenger with
the two pieces of baggage and went to the waiting room and it so
happened I saw Red Cap No. 22 who waited on my car in front of
the station going to the Cab Stand. I met him there and asked him if
he had delivered three pieces of baggage to a lady and a little
girl and he said no. I asked him would lie give these two pieces
of baggage to them at the Cab Stand and he said put them on my
truck. He already had several pieces of baggage on his truck and
returned from the Cab Stand.
"Given under my hand and seal of office this 6th day December
1957.
"(Seal)
"/S/ Richard E. McCarting /S/ Jos. Redmond
Witness /S/ Myrtle Calhoun
IS/ F. D. Friend Notary Public of
Witness
Dallas County"
This request was denied, as was the appeal, the following reasons being
given.
"There can be no question about fbe fact that the charges
against Mr. Tucker were conclusively proven in the investigation.
His attempt to disprove the charges was most unconvincing, and the
testimony of witnesses firmly established his guilt.
8845-4
489
"The testimony given by Mr. Tucker about a Pullman porter
bringing a bag or bags to the taxi stand was refuted by two witnesses. Furthermore, the hearing officer offered to recess the investigation to allow the accused or his representative to call in the
Pullman porter for the purpose of testifying in behalf of Mr.
Tucker. That offer was declined by 31r. Tucker's representative.
Pullman porters have specific instructions to deliver any bags or
articles left on cars to the Superintendent's Office.
"With respect to the statement produced by you at the conference on December 12th, signed by the Pullman porter alleged to
have been involved in this baggage handling, we do not feel that
such statement should be given any credence, since, as stated above,
the investigating officer offered to recess the investigation long enough
to have available the Pullman porter in question, and this would
have given the Carrier the opportunity to question this witness.
For these reasons, I cannot accept the statement in the light it was
presented."
Your attention is directed to the followin- questions and answers at the
close of the investigation:
"Mr. Sayers: Anything else anybody wants to say.
Mr. Akers: We have nothing else to say.
Mr. Sayers: Is there anything to be brought forward now
before we close the investigation?
Mr. Akers: We have nothing further.
Mr. Sayers: Mr. Tucker and Mr. Akers, I would like to ask
you then if each of you two gentlemen have been allowed to sit in
the investigation room during the entire proceedings and allowed to
question all the witnesses and examine all the papers used in the
investigation?
Mr. Akers: We have, yes, sir."
The Organization states that the investigation was not as complete as
it should have been:
"When a proffer was made (page 23, Transcript of Investigation) that the hearing be recessed to afford Tucker an opportunity
to secure the testimony of the Pullman porter, Tucker expressed a
willingness to have that done. However, and unfortunately, his
representative overruled his request, and stated that be was ready
to close the claim. It must be borne in mind at this point that
tucker desired a recess, but was overruled by his representative."
11*
* * After the representative of the employe made the mistake of not securing the presence of the Pullman porter, that
of itself was no excuse for the Carrier to refuse to inform itself,
and especially after notice, of the truth or falsity of Tucker's
statements by securing a statement from the Pullman porter. It
signally failed in its duty to Tucker, and signally failed to seek
out and see to it that justice would be done. * * *"
884 5-5
490
The above contention must be rejecten because it is clear that when
asked if
"Q-Do you have present any witnesses, Mr. Tucker?
A-No.
Q-We understand that you don't des;re to have any witnesses,
is that correct?
A-No witnesses."
Then again when the offer was made to recess and to call in the Pullman
porter as a witness it was Claimant's decision as well as his representative's.
If it was not his decision he was in a position to take exception when his
representative stated:
"As far as we are concerned, we are ready to close the case."
It would be a presumption to say that she Carrier was obliged to contact the unnamed Pullman porter and examine him after the investigation
was closed. Here the Carrier representative offered to recess the hearing to
afford Tucker an opportunity to secure the testimony of the Pullman porter
but his representative stated:
"As far as we are concerned, we are ready to close the case."
In rejecting this proposal, it was the Claimant's representative, not the
Carrier's, we think, who was arbitrary and unreasonable in refusing a continuance.
The record discloses sufficient competent evidence, which sustains the
Carrier in their dismissal of said Coleman Tucker, Jr., for his failure to attach his check or checks to the pieces of baggage before moving same on
the 9th day of November, 1957.
The Carrier did give the Claimant every opportunity to be heard and to
present witnesses in his own behalf and effered to recess the hearing to a
later date so that he might bring in the Pullman porter, but Claimant and
his representative refused.
FINDINGS:
The Third Division of the Adjustment Board, upon the
whole record and all the evidence, finds and holds:
That the parties waived hearing on this dispute; and
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 did not violate the Agreement.
5845-6
491
AWARD
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of THIRD DIVISION
ATTEST: A. Ivan Tummon
Executive Secretary
Dated at Chicago, Illinois, this 11th day of June, 1959.