ORDER OF RAILWAY CONDUCTORS AND BRAICEIMEN
PULLMAN SYSTEM
After hearing held on December 1, 1959 and January 15, 1960, the Claimant was discharged from service, effective February 11, 1960, on the basis that the "transcript of the hearing is replete with evidence sustaining the charge."
This appeal was taken upon final denial of the claim on the property. The claim is predicated upon the contention of the Petitioner that the Company's action in discharging the Claimant violated Rule 49 of the applicable Agreement in that the charge made against him was no specific as required by the Rule, that hearsay evidence was relied on by the Company to sustain the discharge, that the uncorroborated state of the complaining passenger did not prove the charge as required by the Rule.
The Company contends that Rule 49 was satisfied in all respects, that the evidence introduced at the hearing on the charge considered with the Claimant's letter to the Superintendent dated September 20, 19'59, and his failure to appear at the hearing furnishes ample support for its finding that Claimant was guilty of the charge, and that in view thereof and the Claimant's service record, the disciplinary action taken against him was proper.
We recognize that the Company bears the legal and moral responsibility for the proper behavior of its employes toward passengers and that those who engage in misconduct in this regard must be removed from the service in the interests of satisfying these responsibilities and maintaining the Company's business. Nevertheless, in view of the contentions of the parties, and the Agreement between them, and aside from the question whether the charge was specific within the meaning of the Rule, it is our duty to determine whether there is evidence in the record to support the Company's finding that the Claimant was guilty as charged beyond a reasonable doubt.
As evidence of his guilt, the Company refers to the Claimant's letter to the Superintendent dated September 20, 1959, which reads as follows:
In considering this letter, we are not construing a pleading in a court of law; and we are not confronted by any requirements as to the language or form in which a denial of wrongdoing must be made. While the letter indicates that the Claimant recalls the passenger and his conversation with her, no inference of an admission of wrongdoing may be drawn therefrom.
By stating in his letter that "it would be impossible to assign space to any passenger on PRE, without the proper transportation," Claimant indicated that he could not have offered the complaining passenger accommodations without collection of the proper rate. Thereby, Claimant indicated that he did not engage in such conduct. By stating that "My conversation with the passenger in the 19IO1--3 596
diner was a matter of business," Claimant indicated that his conversation with and remarks to the complaining passenger were proper, and thereby he denied that he made improper remarks to her. There is nothing in the letter to suggest that the "matter of business" was not proper business. By stating that "I did not at any time have a drink," Claimant denied that he was drinking on the occasion involved.
For these reasons, we must conclude that Claimant's letter is more consistent with a denial rather than an admission of guilt.
The record shows that the allegations of the incident of misconduct in the unsworn written statement dated October 22, 1959, of the complaining passenger were uncorroborated. The statements of PRR Passenger Manager Dorrance and of Inspector Bowman cannot be regarded as corroboration. Manager Dorrance received his information from a report of a PRR Public Relations Representative based on statements made by the complaining passenger's brother who was not on the train. Inspector Bowman's statements were based on what was related to him by the complaining passenger.
The crucial question to be determined is whether the uncorroborated written statement of the complaining passenger is sufficient on the record of the hearing considered as a whole to support the finding that Claimant was guilty of the alleged misconduct beyond a reasonable doubt in accordance with the Rule. The record discloses that the written statement of another witness posed contradictions of allegations contained in the statement of the complaining passenger with respect to substantial and material aspects of the alleged incident of misconduct. As an integral part of such incident, the statement of the complaining passenger asserts that on the occasion of the improper remarks made by the Claimant in the diner, he ordered "ice tea" but was served an "alcoholic drink" and that in her opinion "he had definitely been drinking." On the other hand, the statement of J. H. Jones, the car Porter, asserts that he "had various conversations with my conductor about conditions and space and did not observe or detect the odor of intoxicants on his person or observe anything unusual about his actions." The statement of the complaining passenger indicates that she paid her transportation to the Train Conductor and the Claimant on separate occasions and that she paid the latter while he sat in her roomette and made improper remarks. The Porter's statement indicates that although he could not specifically recall them stopping at the roomette referred to, the Train Conductor and the Claimant made their collections together. It is noteworthy that there is no evidence that the complaining passenger complained about Claiman't behavior to anyone on the train.
At the hearing, representatives of the Claimant took the position that he was not required to appear because the charge was not specific as required by Rule 49, and Claimant did not appear. The contention that the charge did not meet the specificity requirements of the Rule is urged here but we need not pass on it for the reason that our conclusion rests on other grounds. Nevertheless, we are not satisfied on the record in this case that the failure of the Claimant to appear is adequate in itself in the contradictory posture of the record to sustain the "beyond reasonable doubt" finding required by Rule.
We hold that under the circumstances presented by the record in this case, the uncorroborated written statement of the complaining passenger which is contradicted in substantial and material respects by the written statement of another witness does not sufficiently support the Company's finding that Claimant was guilty of the alleged misconduct beyond a reasonable doubt 10101--4 597
within the meaning of Rule 49. See Awards 4230, 7774, First Division Award 19525.
Our conclusion does not mean that guilt under the Rule may not be established by an uncorroborated written statement in appropriate circumstances.
FINDINGS: The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds and holds:
That the Carrier and the 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
Award 10101 is in error in sustaining the claim herein. It is inimical to the public interest and is based upon unsound conclusions concerning the evidence of record.
Carriers have a legal and moral responsibility to the public to discipline, and to exclude the unfit from their service.
"The Carriers owe a duty to their patrons as well as those engaged in the operation of their railroads to take care to employ only those who are careful and competent to do the work assigned to them and to exclude the unfit from their service."
"The Pullman Company, even to a greater degree than a railway, must impose discipline on its employes who willfully violate its rules."
"Railroads-if they are to pursue their business efficiently and profitably must have the earned confidence and support of the public. 10101-5 59S
Such confidence is earned not by tracks, trains, cars, bridges, signals or stations but by PEOPLE. People-employed, trained and directed by the Railroads to execute their assignments properly and efficiently. People-who will rigidly follow the necessary and important railroad rules set forth for their guidance and direction. People-who will strive to earn the confidence and active support of the public by the manner in which they perform their jobs."
Also see recent Awards 8755 and 8567, among many others, in which this Division held that the public interest is paramount.
The record shows that, in the instant case, Carrier had proper grounds to discharge the claimant herein. It shows that, on August 31, 1959 Mr. George S. Holleran, Public Relations Representative of the Pennsylvania Railroad, received a telephone call from the brother of Miss Vivia Locke, Director of Speech at the University of Oklahoma, relative to improper conduct towards her by Claimant while she was a passenger on the train on which Claimant was conductor on August 30, 1959. Upon being furnished by the Pennsylvania Railroad with information concerning this incident, The Pullman Company obtained statements from Miss Locke and members of the crew, including the Claimant herein. The complaining passenger's statement was as follows:
"The Pullman Company Chicago Illinois
seemed dedicated to the idea of saving me money. He suggested that upon finishing my lunch that I go to sit in bedroom D-relax and rest. I said to him 'this is ridiculous.' While it might seem the logical thing to get up and leave at this point, I didn't do so, either from confusion, or a desire on my part to avoid attracting attention.
"He ordered 'ice tea'. When it was served it was obviously an alcoholic drink as it definitely had an alcoholic odor. In fact, in my opinion he had definitely been drinking.
"In the course of conversation I mentioned that it had stormed the previous night. I remarked concerning the beauty of the storm whereupon he said, 'I get my kicks out of women!'
"I had poison ivy on my hand. It was covered with a calomine lotion. I spoke of my discomfort he then said, 'I am not bothered with such, but I can't go in a men's room that (a word I did not understand) doesn't just jump right off on me.' This of course, did not make sense to me. I left the diner and returned to the roomette. As soon as the train conductor came to my roomette I paid him the increase in fare.
"Later the Pullman conductor came to my roomette, and sat down on the commode seat. I told him I had paid the fare to the train conductor. He said 'Did he ask you for that?' I said, 'No, I wanted to pay him and quickly.' He then took the money for the roomette and said 'You school teachers know all the answers. If you don't want to save any money why should I care.' He then left and I did not see him until the following morning.
"I identified him by the cap and buttons with the word Pullman on them. He appeared to be about fifty years old and he wore glasses. I did not want to run the risk of seeing this man again. I therefore came back to my home by plane.
"It must be remembered that acts of this kind are difficult of proof because they usually occur when there are no witnesses about."
"I was the regular assigned conductor on PRR #30 leaving St. Louis Aug. 30, 1959.
"It would be impossible to assign space to any passenger on PRR without the proper transportation.
"My conversation with the passenger in the diner was a matter of business. 10101-7 600
"You were conductor assigned to service in line 6524, PRR Train #30, St. Louis, Missouri to New York City, August 30-31, 1959.
"By stating in his letter that `it would be impossible to assign space to any passenger on PRR without the proper transportation,' Claimant indicated that he could not have offered the complaining passenger accommodations without collection of the proper rate. Thereby, Claimant indicated that he did not engage in such conduct. * * "
Claimant does not deny that he suggested that the complaining passenger sit in Bedroom D in which he worked until arrival of train at Indianapolis.
Claimant does not deny that, when he finally took the money for the roomette, he remarked to the complaining passenger "You school teachers know all the answers. If you don't want to save any money why should I care." 10101-s 601
It is significant that, while Jones' statement confirms the complaining passenger's statement of what occurred at the time she boarded the train at St. Louis, it is negative with respect to any question concerning Claimant's drinking and his contact with the complaining passenger because Jones simply states he had observed nothing in these respects. In any event, Claimant was not charged with drinking. 10101-9 602
"The finding of guilt or innocence of the charge must be based upon the facts developed at the investigation and the evidence there disclosed controls. See Award 3322. * * * An investigation must be held, evidence taken therein, the investigation concluded, and any other procedure connected with it progressed as the rules provide.
"In approaching a determination of this case the duty of this Board is to review the record of the investigation subject to the established rule that `it is not the function of this Board to weigh conflicting evidence in a discipline case and if the evidence is such that, if believed, it will support the findings of the carrier, the judgment of the carrier will not be disturbed.' See Award 3321."
"* * * He (Claimant) was not justified in declining the offered investigation. It necessarily follows that he was not justified in refusing to participate in the investigation which the Carrier and the Organization agreed to hold on August 14th, 1946.
"Considering all of the record of this case, we cannot escape the conclusion that Claimant did not actually desire an investigation."
"* * * His action in willfully refusing to participate in the investigation constitutes a waiver of all the objections here raised. His obligation was to proceed with the investigation and if it appeared that he was deprived of a fair and impartial hearing by prejudicial rulings of Carrier's investigating officer, the record could have been progressed on appeal and appropriate action taken before this Board. But one may not willfully refuse to participate in an investigation and then assert that he has been deprived of a fair and impartial hearing. Award 2654. No basis for an affirmative award exists."
"Claimant, on advice of his representative, refused to answer questions at the hearing scheduled for April 27, 1950. He and his representatives walked out of the hearing scheduled for May 12, 1950 and declined to accept the Carrier's offer of June 16, 1950 to conduct another hearing. Under such circumstances the claim is without merit."
It is clear from the record in this case that the majority in Award 10101 erred in sustaining the instant claim on its holding that the charge was not proven beyond a reasonable doubt. The following excerpt from our Award 7774, involving this same Carrier and a comparable rule, and from our Award 8754, involving the same parties, agreement and rules as in the instant case, are pertinent.
LABOR MEMBER'S ANSWER TO CARRIER MEMBERS' DISSENT TO
AWARD 10101-DOCKET PC 12031
It is crystal clear from reading the dissent, that Carrier Members are attempting to confuse the record with irrelevant, extraneous and immaterial matter. Quotations out of context of Court Decisions and Awards of this Board will not relieve the Carrier of its burden of proving Claimant guilty of its charges under the clear and definite terms of Rule 49 (i), reading in part as follows:
Rule 49 specifically places the burden of proving the accused guilty beyond a reasonable doubt before any discipline shall be made. This the Carrier failed to do. It found the Claimant guilty upon the uncorroborated written statement of one complaining passenger who was not present at the hearing for cross examination; the balance of the testimony introduced at the hearing was hearsay and so recognized by Superintendent Worley when he testified that- 10101-11 604
In other words, we have a situation where Carrier relied entirely upon the uncorroborated statement of a lady passenger who did not attend the hearing, nor submit herself to cross examination by the accused or his representative. In this state of affairs the dissenters have jumped to wild and untenable conclusions that Claimant was guilty because-
regardless of whether the employe is guilty or not, even though they violate the collective bargaining Agreement in doing so.
The question here was whether Claimant was guilty of misconduct--not that he failed to properly perform his "job", (Award 10112) nor was the question of "safe operation of railroad" (Award 4771) involved Awards 8755 and 8567 involved an alleged violation of Scope Rules, which are not here involved.
This is the type of extraneous matter introduced by the dissenters every time they find that a Carrier has violated the Agreement with its employes.
I will now return to the pertinent issue and show that Award 10101 followed well established and fundamental principles relating to due process when it held that Carrier violated the Agreement by dismissing Claimant upon the uncorroborated written statement of one passenger. Referee Simmons summed up the controlling principles under similar circumstances in Award 3288, when he held:
investigations need be would be to present the inspector's report, and find the employe guilty as charged. The fundamentals of an investigation are to determine whether or not the statements are true, to throw light upon the circumstances and to deny or disprove. These rights of the employe are all subject to denial unless these statements or the witness making them are subject to the critical scrutiny and examination of the employe. Those right were denied here."
trip, and then only after a Carrier representative had called upon her for her statement. Certainly, the accused or his representative could have been present at the time to question the passenger.
It is apparent that the dissenters are attempting to transfer the Carrier's burden of proof to the accused. This is so untenable that it is not necessary to cite authorities in refutation. The Courts have held that seniority is a property right that cannot be taken away without due process. The due process provisions of the Constitution are incorporated in Rule 49 of the parties' Agreement here. The citation of Awards by the dissenters involving entirely different situations will not relieve Carrier of its obligation to prove Claimant was guilty of misconduct before it was privileged to dismiss him from service.
The fact that Claimant did not attend the hearing-although his representative did-in no way relieved Carrier of this duty. Rule 49 provides as a condition precedent to discipline, suspension or discharge of an employe, the accused shall be furnished a full and exact copy of the complaint within fifteen days after date of receipt; he shall be notified in writing of the precise charge, time and date of hearing, etc.; also, that guilt must be established "beyond a reasonable doubt" If any of these factors are missing Claimant has not been afforded a "fair and impartial" hearing. A review of the wild and unsupportr able conclusions reached by the dissenters merely reflects the arbitrary and capricious action taken by the Carrier in dismissing Claimant from service on unproven charges. What the dissenters are actually saying is that Claimant should have submitted himself to this illegal hearing in order for him to prove Carrier's charges against him. In Award 4607 Referee Whiting held . . .
A review of the Awards cited by the dissenters will prove that they are clearly distinguishable from the circumstances confronting the Board here. A good example is the quotations from Award 8754 where Operator Clary attended the hearing and testified. Here the complaining witness did not attend the hearing, nor was she made available for cross examination, as was the case in Award 8754. Surely, the dissenters are aware of the distinction. It should be remembered that there was no probative evidence that anyone was "exposed" to any misconduct on the part of Claimant.
The citation of an excerpt from Award 7774 is nothing more than a feeble attempt to bolster an entirely unfounded dissent.
Award 10101 correctly follows the keystone precepts in the American concept of justice, that the accused must be confronted by the complaining witness with the right of cross examination. This principle is so well established that the untenable dissent thereto will have no force or effect.
REPLY TO LABOR MEMBER'S ANSWER TO CARRIER MEMBERS'
DISSENT TO AWARD NO. 10101, DOCKET NO. PC-12031
Considering, among other things, that the Agreement between the parties recognizes the propriety of written statements as evidence and that witnesses need not be present at investigations; that Claimant himself refused to appear at the investigation and defend himself, and that he did not deny the charges, irrefragably labels the Labor Member's answer, supra, to be irrelevant, extraneous and immaterial, and Award 10101 to be in error.