THE NEW YORK, NEW HAVEN AND HARTFORD
RAILROAD COMPANY
(1) The Carrier's action in dismissing Humphrey A. Moynihan, Jr., from service on November 6, 1959, was in violation of the applicable collective bargaining agreement between the Carrier and The Order of Railroad Telegraphers governing the claimant's rate of pay, rules and working conditions as an employe of the Carrier, was arbitrary and that the penalty invoked was excessive and unreasonable;
On Sunday, July 26, 1959, Claimant was under orders to report for a tour of duty at Davisville Tower, Davisville, Rhode Island, commencing at 10:00 P. M. and continuing through until 6:00 A. M., Monday, July 27. In the afternoon of July 26, Claimant noticed a freight train in difficulty. He telephoned the dispatcher and notified him of his availability. The dispatcher instructed Claimant to report for duty to the Davisville Tower and perform necessary tower service. Claimant complied. Then, sometime before 10:00 P. M., he requested the dispatcher to relieve him from working the shift starting at 10:00 P. M., to which he had been assigned. Because of unavailability of another telegrapher, the dispatcher directed Claimant to continue to work until relieved. Claimant continued to work until 4:30 A. M. on July 27, when he was relieved in accordance with the requirements of Federal law. At that time he filed a Form 4020, which is captioned "Payroll Time Report-General"; also, two Forms 394-A2, having the caption "Daily Time Report of Employes Who By Use of The Telegraph or Telephone, Dispatch, Report, Transmit, Receive, or Deliver Orders Pertaining To or Affecting Train Movements. Name of Tower, Place or Station ,
Form 394-A2 is used for reporting time worked to the Interstate Commerce Commission, and for no other purpose. Form 4020 is a record kept by Carrier in the course of its business from which wages earned is computed.
Form 4020, as executed by Claimant, shows Claimant as having worked 8 hours at straight time rate on both Sunday and Monday, July 26 and 27, respectively.
On Form 394-A2, No. 5, Claimant filled it in to show that on July 26 he was assigned and did work for eight hours from 2:00 P. M. to 10:00 P. M.
On Form 394-42, No. 6, Claimant filled it in to show that he was assigned and did work for eight hours from 10:00 P. M., July 27, to 6:00 A. M., July 28.
Claimant admits that on July 27 he was called at his home and advised that "his time form was incorrect." For the purposes of this case we can assume, notwithstanding a conflict in the evidence, that Claimant, as he testified, corrected Form 394-A2 to show that "he worked from 7:30 P. M. on July 26, 1959, to 4:30 A. M. on July 27, 1959." This correctly reflected the hours he worked. Claimant admits he did not correct Form 4020, notwithstanding that he had been informed that "his time form was incorrect"
Carrier contends, in effect, that Claimant falsified Form 4020 with the object of getting 16 hours' pay for 9 hours of actual work. Further, while it placed no charge relative to Forms 394-A2, it says the false information placed thereon by Claimant is evidence of his intent in executing Form 4020 as he did. 1317" 216
The conclusion as to what is intent, unless admitted to, is subjective. Where a subjective finding as to intent must be made, an appellate forum will not reverse the judgment of the trier of the facts if the conclusion is one that, in the light of the evidence, could be arrived at by a reasonable man.
Form 4020 is on its face a "Time Report." Notwithstanding, when Claimant was told that "his time form was incorrect" he did not choose to correct that Form. In asserting that he changed Form 394-A2 to show hours worked to 7:30 P. M., July 26 to 4:30 A. M. on July 27, Claimant admits that he did not properly record his "Time" on Form 4020.
Claimant, with more than 8 years' service, knew, or should have known, and is chargeable with knowledge that, in the industry, the time of the work of a shift which extends from one calendar day into the next, is chargeable to the day on which the shift started. See Award No. 5442.
All the work which Claimant performed on Sunday, July 26, and Monday, July 27, was chargeable to Sunday. Consequently, taking Claimant's assertion that he was reporting hours for which he claimed pay and not hours actually worked, he should have shown 16 hours for Sunday, July 26. He has no defense for showing 8 hours worked on Monday, July 27. He worked no hours chargeable to that day. It is reasonable to infer that Claimant had ulterior reason for not showing 16 hours worked on Sunday, July 26.
There is a hollow sound to Claimant's averment that he showed 8 hours worked on both July 26 and 27, because under the Agreement, in his interpretation, that is the number of hours for which he was entitled to pay without regard to the lesser number of hours actually worked. With his over 8 years of experience, Claimant knew, or should have known, that a time report differs from a wage claim; also, that having filed an accurate time report, if he felt the wages he received, based on the reported time actually worked, were less than those prescribed in the Agreement, his recourse was the filing of a wage claim.
We find, from the record, that a reasonable man could conclude that Claimant wilfully misrepresented the time worked.
We find that a wilful misrepresentation of time worked is a violation of Carrier's Operating Rule "N", and the discipline imposed-dismissal from service-is reasonable.
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 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
Even though it be inappropriate to quarrel with the majority's finding from the record that a reasonable man could conclude that the claimant intentionally misrepresented the time worked, I believe a denial award was not warranted.
Awards of this Board, impressive in number, have held that the severity of punishment must be reasonably related to the gravity of the offense. We have repeatedly observed that misdemeanors do not require life sentences.
Considering the relatively minor rule infraction found by the majority to have been involved, and that reasonably careful supervision of time reports by management would have detected the irregularity immediately, I am convinced that outright dismissal was too severe.
The extreme discipline imposed should have been modified by this award; therefore, I dissent.