Award No. 11295
Docket No. TD-13111
NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
(Supplemental)
Preston J. Moore, Referee
PARTIES TO DISPUTE:
AMERICAN TRAIN DISPATCHERS ASSOCIATION
THE NEW YORK, NEW HAVEN AND HARTFORD
RAILROAD COMPANY
STATEMENT OF CLAIM: Claim of the American Train Dispatchers
Association that:
(a) The New York, New Haven & Hartford Railroad Company
(hereinafter referred to as "the Carrier") violated the effective schedule agreement between the parties, Article 6 thereof in particular, by
its action in withholding, and subsequently dismissing, Train Dispatcher E. J. Gannon from the Carrier's service; such action being
pursuant to hearing held in violation of the requirements of said
Article 6 and upon charges not sustained by evidence of record.
(b) The Carrier shall now be required to compensate Train Dispatcher E. J. Gannon for all loss of compensation from date withheld
from service, October 21, 1959, until reinstated, on or about March
1, 1960; and that the individual Claimant's record be cleared of the
charges upon which Carrier's action relies.
OPINION OF BOARD:
This is a dispute between The American Train
Dispatchers Association and The New York, New Haven and Hartford Railroad Company.
The instant dispute arises out of disciplinary action imposed upon the
Claimant, Train Dispatcher, E. J. Gannon.
On the morning of October 20, 1959, Carrier's passenger train No. 55,
manned only by a conductor and engineer, found it necessary to stop near
Rowayton, Connecticut, and request assistance before it could proceed. The
conductor called Claimant by telephone and reported the difficulty and location
of the train. The Claimant proceeded to send an extra to assist. There was
a misunderstanding whether the train was east or west of Rowayton, and a
collision resulted injuring several people.
Pending investigation several employes were held out of service. Under
date of October 21, 1959, a notice was sent Claimant by certified mail which
directed him to attend a "Preliminary Inquiry." There was no charge against
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Claimant in the notice. This procedure was objected to by the Petitioner.
On November 15, 1959, another notice was sent Claimant to be present
at a hearing to determine Claimant's responsibility.
The hearing began on November 16, 1959 and was concluded on November
18, 1959. Within ten days the Claimant was dismissed from service.
After discussion, the Claimant was restored to service with all rights
unimpaired. Discussion was then held regarding the matter of compensation
for time lost by Claimant. During the course of discussion, engineer Tripp,
who had recovered, was interrogated by Carrier. The Claimant nor his representative had no opportunity to be present. Thereafter, Carrier denied Claimant's request for compensation.
Petitioner contends that Carrier's action was in violation of Article 6 of
the Agreement and that Carrier's action cannot be supported by the record
and was arbitrary.
We believe the Agreement does not prohibit a "Preliminary Inquiry." To
hold otherwise would place restrictions upon the Carrier which are not in
the Agreement. A provision which provides for a hearing does not bar art
inquiry so long as it is held in good faith and not an abuse of power.
We adhere to the principles established by this Board which hold that
this Board will not substitute its judgment for that of the Carrier if there is
substantive evidence in the record to support the Carrier's findings.
We cannot point to definite evidence which conclusively establishes the
fact that Claimant was not afforded a fair or impartial hearing. We do believe
that from a careful study of the record, the Claimant was not given a fair
or impartial hearing. It is not necessary to point to definite facts or testimonyAs set forth in Award 2771, it is sufficient if we believe that something, other
than a proper regard for the rights of all parties, had undue influence on the
Carrier in arriving at its decision.
"Award2771
"The fact that we have been consistent in our application of such
rules does not mean that there cannot be a factual situation where,
notwithstanding our adherence to them and irrespective of the status
of the evidence, a situation may arise which convinces us a party to a
disciplinary proceeding may not have been awarded a fair and impartial hearing. N'or does it mean that we are required to place our
hands upon some definite circumstance or evolve some tangible theory
which conclusively establishes complete justification for our view that
situation prevails. It suffices if within the innermost walls of our conscience the conclusion persists.
"In the instant case we are not disposed to cast any refection
upon the testimony of any witness. We simply say that from an examination of the entire record we have an innate feeling that something,
perhaps unconsciously, other than a proper regard for the rights of
all the parties to the controversy, had undue weight in influencing the
Company to arrive at its conclusion. The same feeling prevails with
respect to influences responsible for the testimony given by the Con-
11295-3
"Under such conditions we conceive it is our obligation to intervene and do what in our judgment is just and equitable as between
the parties. So, we exercise that prerogative and hold that the attendant disciplined did not have a fair and impartial hearing. On that
account it follows the punishment imposed by the Company was an
abuse of its discretion and should be set aside.
"In announcing this conclusion this Division adheres to the just
and equitable proposition that where doubt exists it is better that a
guilty employe should go free even though it means compensation
for lost time and reinstatement than that all employes should be denied the safeguards of a fair and unprejudiced hearing."
For the foregoing reasons, we believe the Agreement was violated.
FINDINGS: The Third Division of the Adjustment Board, upon the whole
record and all the evidence, finds and holds:
That the parties waived oral hearing;
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 Agreement was violated.
AWARD
Claim sustained.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of THIRD DIVISION
ATTEST: S. IL. Schulty
Executive Secretary
Dated at Chicago, Illinois, this 3rd day of April, 1983.
CARRIER MEMBERS' DISSENT
AWARD 11295-DOCKET TD-13111
Award 11295 omits the fact that after claimant advised No. 55's conductor
that assistance would approach from the rear, the conductor stated: "I am
going out to protect my rear end", to which claimant replied: "O.K., Go ahead."
Later claimant sent assistance from the opposite direction without communicating the change in plan to No. 55's conductor, in violation of carrier's
operating Rules, providing:
"If an accident occurs to a train between stations or at a station
where an operator is not on duty, and assistance is required, a message, signed by the conductor and engineman, must be sent to the
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superintendent, giving the location and stating their train or engine
will not be moved and will be protected in both directions until the
requested assistance arrives. The movement of assistance may then
be authorized without addressing a copy of the order to the disabled
train as required by Rule 208."
RULE 208:
"A train order to be sent to two or more offices must be transmitted simultaneously to as many of them as practicable, and sent first
to the train or trains of which the right or schedule is to be restricted.
When not sent simultaneously to all, the order must be sent first to
the train or trains of which the right or schedule is to be restricted."
Claimant's action was not in compliance with the rules as reflected
by his
testimony at record pages 55 and 56:
Q. "* * * Did you comply with this Rule (94) in failing to
enter the phrase `and will be protected in both directions until the
requested assistance arrives'?"
A. "I failed to write in my train order book the last four words
of the message I gave and received `and will protect train'. * * *"
Q. "In view of the fact that you did not have a message per
Rule 94, should a copy of that train order then be addressed to
No. 55 ?"
A. "In view of the fact that I actually did not have the proper
message, a copy of the order should have been sent to train No. 55.
However, I felt I had the proper message in my book, which I see
now I didn't."
The majority vaguely implies that carrier's interrogation of engineer
Tripp affected the case, but the fact this event did not take place until 45 days
after claimant's dismissal, rebuts any such implication. The record does not
include a scintilla of evidence that claimant was not afforded a fair and impartial hearing. On the other hand, carrier's assessment of discipline was amply
supported by claimant's admission that he violated the rules.
The majority pays lip service to established principles, then, contrary to
the overwhelming weight of authority finds:
"We cannot point to definite evidence which conclusively establishes the fact that claimant was not afforded a fair or impartial hearing. We do believe that from a careful study of the record, the claimant was not given a fair or impartial hearing. It is not necessary to
point to definite facts or testimony."
Although Award 2771, relied upon by the majority, was declined almost
20 years ago, that portion of the opinion quoted in Award 11295 has never
been cited or followed but has been repudiated repeatedly. It follows that
Award 2771 is not authority for anything.
In Award 7072 (Carter), it was held:
"It is only when the evidence clearly indicates that the carrier
acted arbitrarily, in bad faith, or without just cause under the cir, cumstances, that the intervention of this Board is permissible."
(Emphasis ours.)
to the same effect, see Awards 7363 (Larkin), 8424, 8511 (Lynch), 8715
(Weston), 10571, 10642 (LaBelle) and 10096 (Rose).
The majority in this case admits there is no evidence to which they can
point that sustains the finding which falls far short of the above rule requiring that the "evidence clearly indicate"
In Award 9199 (Weston), this Board held that:
" * * * this Board's well-established principle that it is not
our function to weigh conflicting testimony, determine the credibility
of witnesses or upset findings of fact based upon competent, if contradicted, evidence. * * * "
See, Also, Award 9511 (Elkouri).
Award 9046 (Weston) stated:
"On the question of appropriate discipline, particularly in an
accident case, we are not disposed to substitute our judgment for
that of the Carrier which is charged with the responsibility for the
safety of its employes and property as well as the public. (See Awards
891, 8711, 2632, 2621)."
'this Board will not substitute its judgment for that of the carrier if
there is substantive cvidence in the record to support the carrier's findings.
(See Awards 5974-Messmore, 6919-Cofey, 9046-Weston, 8449-=Johnson,
10113--Daly, 10595--Hall, 10642-La Belle, and 11017-Dolnick).
In view of these controlling authorities by experienced referees, Award
11295 is a shameful exercise of authority.
For these reasons, we dissent.
Js/ W. M. Roberts
W. ill. Roberts
Is! G. L. Naylor
G. L. Naylor
!sl R. A. De Rossett
R. A. De Rossett
/sJ R. E. Black
R. E. Black
Is/ W. F. Euker
W. F. Euker