STATEMENT OF CLAIM: Claim of the General Committee of The Order of Railroad Telegraphers on the Lehigh Valley Railroad, that:
1. Carrier violated terms of the agreement between the parties hereto when on June 18, 1959, without just and sufficient cause, based on the recorded testimony of June 12, 1959, in the instant case, it dismissed or discharged Mr. C. L. Person, regular relief towerman-telegrapher at P. & L. Junction, New York.
2. C. L. Person shall be reinstated to his regular relief position at P. & L. Junction with all rights and privileges under the agreement unimpaired.
3. C. L. Person shall be made whole for all compensation lost as a result of the Carrier's improper and unwarranted action, as set forth above in Item 1.
OPINION OF BOARD: On Sunday, May 31, 1959, the Claimant, Carlton L. Person, a Carrier employe since January 1949, was working as relief towerman-telegrapher at the P & L Junction, Caledonia, New York. His weekly work schedule was as follows:
Claimant stated that he was absent from the tower without permission from 5:58 P. M. to 6:28 P. M. on May 29, 1959 when he went out to get a banana split. The Carrier stated Claimant admitted that his actions constituted a violation of Rules E, 801 and 803 of the Book of Rules, the pertinent portion of which read as follows:
angles, the Lehigh Valley Railroad at the P & L Junction and the P & L Junction towermen-telegraphers on duty handle traffic on both railroads.
BJ-2 by to Manchester Tower and reported it clear of the block at Niagara Junction but failed to report BJ-2 to Mr. Coxe, Assistant Chief Train Dispatcher.
P. M.-when he stopped ringing. At 6:45 P. M. Mr. Coxe stated that he called and reached the Claimant.
sentative, Mr. Edgar Magee, Local Chairman O.R.T., attended the meeting in Mr. Becker's office. The Claimant answered a series of questions asked by Mr. Becker.
This is to advise that for your absenting yourself during tour of duty without permission, at P & L Junction, May 31, 1959, in violation of Rules E, 801 and 803 of the Book of Rules, you are hereby dismissed from the services of the Lehigh Valley Railroad.
"It is our conclusion that the discipline in this case, based on the testimony taken by the Carrier on June 12, 1959, is excessive and that the extreme penalty was imposed by Superintendent Crowley without just and sufficient cause. Hence, our appeal to you.
In directing this appeal to you in accordance with provisions of Rule 28, paragraph (d), we request that this claim be allowed in full. We cite Rule 28, paragraph (f).
Referring to our discussion when you were here at conference, August 27th, in connection with the claim of C. L. Person for reinstatement to his regular relief position at P&L Junction with all rights and privileges under the agreement unimpaired and to be reimbursed for all compensation lost as a result of his dismissal from the service.
This will confirm my decision given you at our conference that after reviewing the record of the hearing in the case of Mr. Person I find the evidence supports the disciplinary action that was taken in dismissing him from the service for absenting himself from the duties of his position during regular hours at P&L Junction on May 31, 1959, and that Mr. Person is not the type of person we desire to reemploy. Therefore, the claim in this case is denied.
Incidentally, about the time of the occurrence for which Mr. Person was dismissed from the service, he had been arrested on a 10034-4 833
Now let us look at the language of Mr. Becker's opening remark to the Claimant-when the latter reported as requested in the above letter.
The language of Rule 28 (b) is simple, direct and clear. It specifies that an employe shall be given "a fair and impartial hearing;" * * *; and that * * * "the employe shall be apprised in writing * * * of the precise charge against him."
The language of Mr. Becker's letter requests the Claimant to come to his office to make a STATEMENT. The word hearing is not even mentioned and neither does Mr. Becker's letter specifically set forth "the precise charge" against the Claimant. There isn't any close, knotty, or semantic problem here. There is only the undeniable fact that the Carrier failed to comply with the provisions of Rule 28 (b).
Mr. Becker's opening remark to the Claimant - as quoted above - irrefutably indicates that the Claimant appeared at Becker's office to make only a STATEMENT.
The Carrier contends that the Organization's General Chairman - in his letter of August 10, 1959 - stated that a hearing had taken place; and that the Carrier's Chief of Personnel, in his letter of September 2, 1959, referred to the "hearing in the case of Mr. Person"; and offered these comments to support its claim "that the Board doesn't have any right to interpret rules differently from the parties themselves."
To this the Board replies - that the mere reference to a "hearing" by a Carrier and by an Organization member does not - ipso facto - make it a hearing and, at the same time, make it an unassailable fact. When the parties are in error, as in the present case, it is not only the duty but also the responsibility of the Board to correct the error.
Rule 28 (b) is an essential part of the existing contract between the parties; a contract that represents a negotiated agreement by the contracting parties; a contract that accurately, simply and clearly reflects the intentions of the contracting parties; a contract that neither the General Chairman of the Organization nor the Carrier's Chief of Personnel has the right to change or amend unilaterally; a contract that may only be revised or amended jointly by the contracting parties-as provided in Rule 34 of the Agreement and which reads as follows:
It would seem amply clear from the facts recited above that no one has the right to revise the existing contract but the contracting parties. To recognize or approve an interpretation of Rule 28 (b)-even though supported by responsible Carrier and Organization officials-that is contrary to the simple, direct and clear language of that provision would, in fact, be revising the Agreement.
In the judgment of this Referee, it is the Board's function to interpret the Agreements between the Carriers and their respective Organizations; a function, I might add, that is supported by a mandate from the Congress of the United States.
On the second question, namely "Was the Carrier's disciplinary action too severe?" The Board believes that the punishment was in keeping with the seriousness of the offense.
The Claimant's position-towerman-telegrapher-is one of prime importance. To a substantial degree, the safe and efficient operation of a railroad depends upon the telegrapher's skill and faithful adherence to job duties. Leaving his post for a thirty minute period-without authorized permission is a most serious offense. Accordingly, the Board does not believe that the Carrier's disciplinary action was too severe.
FINDING: The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds and holds:
That the Carrier and Employe involved in this dispute are respectively Carrier and Employe 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 violate Rule 28 (b) but the issue was not properly raised on the property.
SPECIAL CONCURRING OPINION TO AWARD NO. 10034,
DOCKET NO. TE-12196
Award 10034 co~ectly holds that Carrier's disciplinary action was not too severe, but it is highly improper in concluding that the Carrier violated Rule 28 (b) while at the same time holding that the issue was not properly raised on the property-hence not properly before the Board-particularly when the record shows that there was no disagreement between the contracting parties themselves concerning the propriety of the procedure followed.