EMPLOYES' STATEMENT OF FACTS: There is in full force and effect a collective bargaining Agreement entered into by and between Atlantic Coast Line Railroad Company, hereinafter referred to as Carrier or Management, and The Order of Railroad Telegraphers, hereinafter referred to as Employes or Telegraphers. The Agreement was effective November 1, 1939. This Agreement, and all subsequent agreements entered into by and between the parties, are on file with this Division and are, by reference, made a part of this submission as though set out herein word for word.
The dispute submitted herein was handled on the property in the usual manner through the highest officer of Carrier designated to handle such disputes and failed of adjustment. This Division, under the Railway Labor Act, as amended, has jurisdiction of the parties and the subject matter.
The dispute arose out of an incident occurring on the 2nd day of August 1956. The matter became the subject of a grievance wherein claim was filed as follows:
In due course that dispute was submitted to this Division as Docket TE-9358. On the 4th day of February 1959, the Board rendered Award 8710 and in its Opinion stated:
Carrier, therefore, urges that your Board hold that the resignation signed by Mathis on August 2, 1956, was a valid one, and that the remainder of his claim, for restoration to duty, with unimpaired seniority, and with compensation for time lost, is denied.
Data in support of Carrier's position have been presented to the Employes' representative.
OPINION OF BOARD: Award 8710 held that under Article 18(b) of the applicable Agreement, the Claimant was entitled to a hearing on the question of whether the resignation from the service of the Carrier which he signed on August 2, 1956, was obtained by duress. A hearing on that issue was held on April 14, 1959, and thereafter, the Carrier's Superintendent who conducted the hearing, concluded that the resignation was valid and that it terminated the Claimant's employment relationship with the Carrier on the date it was signed. The present claim is appealed here on the contentions of the Employes that the Carrier erred in failing to find that the resignation was secured by duress and coercion and that it was not voluntary on the part of the Claimant.
Careful consideration of the record discloses that this petition of the Employes rests upon an attack on the evaluation of conflicting evidence at the hearing concerning the circumstances under which the resignation was signed by the Claimant and the resolution of questions of credibility of witnesses by the Superintendent who conducted the hearing. Numerous prior awards have established that it is not within the province of this Division to weigh conflicting evidence and to determine the credibility of witnesses on appeal here. Awards 9322, 6927. For that reason, we are precluded from substituting our judgment of the evidence concerning the signing of the resignation for that of the Carrier. For the same reason, and since the record also discloses that the Carrier's finding with respect to the validity of the resignation is based on testimony of witnesses who had knowledge of the circumstances under which it was signed and were subject to cross-examination, we must conclude that the finding is supported by competent and substantial evidence even though such testimony was disputed by witnesses with similar knowledge of these circumstances.
The Employes also contend that the Carrier failed to comply with the first sentence of Article 18(c) of the Agreement which reads as follows:
The undisputed facts show that the hearing was completed on April 14, 1959, that the Superintendent's decision was dated April 24, 1959, and that it was received by the Claimant and the General Chairman on April 25, 1959. It is clear from these facts that the decision dated April 24, 1959 was dispatched or issued on that date. Under these circumstances, and since the provision relied on uses the word "rendered" rather than "received" or a similar word, we cannot say that the decision was not timely "rendered" under Article 18(c). See First Division Awards 16739, 16366.
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: 10254-42 539
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
The error of this Award is so obvious that little comment should be necessary.
and that the claimant's request for a hearing on that question was proper and required by the controlling agreement.
The hearing held as a result of Award 8710 produced a huge mass of evidence and testimony, much of which was more or less foreign to the point at issue, the "duress issue".
The majority in the present award-the Referee and Carrier Members says that the evidence was conflicting and that the position of the Employes, to be sustained, would require the Board to weigh conflicting evidence and to determine the credibility of witnesses, matters which it says are not within the province of this Division to resolve.
The transcript of the hearing consists of some 135 pages of closely typed material. It is thus not practical to discuss in detail why I disagree with the observations of the majority, citing specific references.
However, even if it be assumed that some of the testimony could be considered conflicting (which I do not agree would be proper) it would be immaterial unless the conflict had a direct relationship to the single question at issue, the "duress point" as it was styled in Award 8710.
The Carrier's two policemen took Claimant Mathis to the station and put him in such fear that, after resisting their efforts for some time, he finally signed the "resignation" which had previously been prepared by the policemen or some other representative of the Carrier.
The testimony on this point-the only point involved-was not conflicting. Mathis and the two policemen gave testimony showing that the actions of the latter induced such fear that Mathis' resistance to their demand that he sign the previously prepared "resignation" grew weaker and weaker until it finally collapsed, and he signed the paper.
Certainly that action was "against his will" and was induced by acts or threats of the policemen. What more was needed to prove the "duress point"?
It must also be kept in mind that the threats voiced by the Carrier's policemen were groundless, no charge of wrongdoing was ever made against Mathis by either the law enforcement agencies or the Carrier itself.
The Employes proved that the "resignation" of Earl Mathis was secured by means clearly constituting duress. Failure of the majority to give effect to the clear evidence on the only point at issue has caused an innocent man to lose his job, and this Board to lose a measure of respect to which it is entitled as an impartial tribunal for correctly settling such disputes.
J. W. WHITEHOUSE
Labor Member.