By agreement the date for hearing this matter was deferred until February 15, 1956. Claimant appeared with his representative, General Chairman W. S. Seltzer, who promptly protested that the notice to Hicks indicated that he was called to answer "charges being preferred by one of our passengers." Thus he insisted that Carrier had not preferred any charges. We think it unnecessary to dwell upon this technical objection, since obviously the purpose of the investigation was to look into the matters complained about in the letter.

Mr. Hicks denied having mistreated any passenger. The only evidence of misconduct on his part was that in the letter of the stranger who claimed to have been a passenger who further claimed that he was mistreated by Hicks, some eight weeks prior to this investigation.

When, in the course of the proceedings, Mr. Collins, who was conducting the investigation, made the statement that he was not going to decide the matter, but refer it to Cleveland, General Chairman Seltzer again raised the technical objection that the decision should be rendered by the officer who conducts the investigation. In argument before the referee, this position has been supported by the citation of prior awards of this Division. See Award 6087. A later award, with the same referee (Whiting) sitting, has also been called to our attention, Award 7088. The following language in the opinion accompanying the latter award is to the point:

"The plain meaning of such a rule is that the official who conducted the investigation, heard the evidence and saw the witnesses will evaluate the evidence and decide whether the employe was guilty or innocent of the charge against him. Then within 30 days after completion of the investigation that decision must be placed in writing and transmitted to the employe. Such a decision may or may not include the imposition of discipline if found guilty. The investigation may have been conducted by one not authorized to impose discipline and such action may be taken by the proper official on the basis of the decision mentioned . . . " (Emphasis ours).

In short, much depends upon what procedure is prescribed in the governing rule of the agreement. It is a well-known fact that in administering discipline which involves either discharge or suspension, many companies require the lower eschelon officials to check with higher officers before imposing a final penalty of such severity. Such may be considered good personnel practice. The one thing which most of the cited awards bears out is that one man should not, at the same time, act as prosecutor, jury and judge. Especially necessary is some appeal from the decisions of those who make the initial determination in such matters.

In the case now before us, it was Mr. Collins who, according to the rules agreement, notified Claimant within the prescribed 30 days what penalty

was being assessed. Since he was the one who conducted the investigation, this technical objection, raised by the General Chairman at the investigation, does not appear to be well-founded.

The pertinent language is found in Rule 8 (b) as follows:

"Employes who are covered by these rules whose applications for employment are approved and who have established a roster standing as stipulated in Rule 4, shall not be disciplined by record, suspended (except pending investigation) or dismissed without proper investigation. Investigation shall be held as promptly as circumstances will permit, the employes being notified in advance of the charge and the time of the investigation.

Such employes may have representatives and witnesses of their own choice (except discharged employes) present. Copy of employe's statement when taken in writing will be furnished to the employes on their verifying and signing same.

The right of appeal through the regular channels to the Chief Operating Officer designated is conceded. However, appeals from decisions rendered must be made within thirty (80) days. All decisions concerning grievances progressed in the regular manner will be made in writing, if requested.

Any employe disciplined, suspended or dismissed, who, after a fair investigation is found blameless, shall be reinstated without loss of seniority and compensated for any wage loss, less amount earned in other capacities."

Further technical objection was raised on the Carrier's side regarding the fact that the statement of claim failed to specify the rule allegedly violatedBut quite obviously the claim that discipline was "assessed in violation of effective Agreement" could only have reference to the above-quoted Rule 8 (b). Also, there is some confusion as to the proper date of the pertinent Agreement. However, it is clear to us that the Rules Agreement of May 1, 1945, is the one referred to in the claim.

Apart from these technical objections, we come to the further question as to whether Claimant was given a fair hearing and whether there is proper proof in the record to justify the penalty imposed by Carrier. There is no evidence to justify the disciplinary action other than the letter from one not present to testify and be cross-examined. Nor was there any investigation to determine what manner of man the writer of the letter is, or was on the evening of December 22, 1955. Certain things are quite obvious from his statement: He was first unhappy over the fact that he could not get his drinks soon enough to suit him; and secondly, he was most unhappy that the Waiterin-Charge would not extend the serving of drinks beyond the scheduled closing time, which was several hours after he boarded the train and began demanding service. And finally, while there is no evidence in the record that the writer of the letter was an invalid, we note that he considered himself mistreated when the Waiter-in-Charge would not have his breakfast served in his bedroom. Quite obviously, the writer of this letter considered himself a man of importance, for whom special service should be provided.

In short, there is no proof before us that the letter writer was a businessman, reputable or otherwise. And, in the words of Referee Shake,

"Assuming that he was, we know of no principle that would require that more weight be given to his statements than to those of a trusted Pullman porter. Business success does not create any presumption of good reputation for truth and veracity; nor does the fact that a man occupies a humble station in life justify the conclusion that he is not to be believed." Award 2634

The Carrier has called our attention to the fact that a previous passenger complaint had been made of poor treatment by Claimant Hicks. But we note that this earlier complaint was made some eight years before the incident of December 22, 1955. For a man whose duties are those of waiter-in-Charge of a car where drinks are served, this is a remarkably good record, not a poor one. Anyone who has spent much time travelling in accommodations of this kind has seen the travelling public at times in good spirits; but not infrequently there is someone who feels himself aggrieved. There are those among such passengers who are prepared to make trouble for anyone who does not readily subscribe to their views. And the most frequent victim of their ill temper is likely to be the one whose duty and responsibility it is to keep an orderly place.

While the letter now before us is evidence, it is by no means conclusive without some corroborative evidence to support it. It should not be accepted as controlling against the testimony of a long-trusted and perhaps longsuffering servant of the travelling public. People travelling sometimes make unreasonable demands. And it is evident from the contents of this letter that the writer was making such demands. To accept this on its face as wholly credible, as the Carrier has done, would be to establish a dangerous precedent.

As we said in Award 7812:

"written statements, submitted in lieu of witnesses or oral testimony, have often been accepted as evidence by this Board. Such statements are taken for what they are worth and usually require some corrboration in the form of circumstantial or other supporting testimony. Here we have none . . . .

While we are reluctant to substitute our judgment for that of management in discipline cases, it is our duty and responsibility to see that punitive actions are for proper cause and are supported by substantial evidence, not a mere allegation of one disgruntled passenger. After a careful examination of the record in this case we can only conclude that the disciplinary action taken was arbitrary, unreasonable under the circumstances and without just cause."

Governing Rule 8 (h) has been violated.

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 Employe involved in this dispute are respec tively 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 Agreement was violated.

AWARD