Appeal filed for and on behalf of C. E. Brecklew, Steward as a result of fifteen (16) days' suspension he was assessed for the following charge:
OPINION OF BOARD: The Claimant was given a suspension of fifteen (11i) days because, "While on duty as Steward on Train No. 130, March 14, 1963, (he) treated patrons in a discourteous manner." The Organization challenges the Carrier's decision on the grounds that Claimant was not accorded a "fair and impartial trial" as required by Regulation 6-A-1 of the parties' Agreement and there was not substantial evidence in the record to support the charge of being discourteous.
The entire case against the Claimant rests on three letters of complaint directed to the Carrier by three passengers, all of whom were together involved in the single incident which seemingly provoked their written protests. As the Carrier acknowledges in the Joint Statement submitted while this appeal was being progressed on the property: "The information contained in the letters constitutes the case against (Claimant)."
With some differences in detail, the letters all describe the common occurrence which gave rise to them. Apparently, the three letter writers, together with a fourth passenger, constituted a party of business associates or friends who boarded the train at Baltimore going to New York City. After getting their seats in the coach they went promptly to the Dining Car. All the tables were then occupied and they could not be seated. They then inquired of the Claimant, the Steward, whether they could get a drink while standing and waiting to be seated. They were told by the Claimant under the rules they could not be served with drinks until they were seated at table. Two of the correspondents wrote that this initial rebuff was delivered by the Claimant very "curtly" or "unpleasantly".
In any event, the party then went to the Club Car where they got their drinks and also started a game of bridge. When the train got to Philadelphia they went back to the Dining Car where they were seated and ordered lunch.
As one of the correspondents put it: "While waiting for our lunch to be served we thought we could continue our bridge game until lunch was served. We were in the middle of the hand when (Claimant) came storming up to our table and, in a voice loud enough to hear throughout the car, if not the whole train, announced card playing was forbidden in the Diner. We said we would finish the hand, at which he further raised his voice, if that were possible, to announce we could not play one more second." This is the sum and substance of the episode as variously reported in the letters of the offended passengers. Copies of these letters were furnished the Claimant by the Carrier with the notice of hearing on the charges.
At the ensuing hearing on the property no witnesses in person were called by either side to testify on the merits. Claimant was present with his representative from the Organization but was directed not to take the stand in his own defense because the Carrier had not seen fit to bring in any of the complaining passengers in person or anyone else to attest their complaints in oral examination. However, the Carrier's hearing officer did introduce for the record the Claimant's letter directed to it in the investigatory stages of these charges. This letter gives a version of the episode at striking odds with that of the passengers. We quote it in full:
In addition, the Organization representative introduced into the record the statement of one of the waiters who was working in the Dining Car at the time of the alleged incident, as follows:
On April 26, 1963, Claimant was advised in effect that he was found guilty as charged and was disciplined by suspension of fifteen days. In measuring the quantum of discipline (as distinct from Claimant's guilt of the subject charge) the Carrier took into account, as it had a right to do and as it had earlier notified Claimant it would review, the Claimant's previous personnel record in the service of the Carrier. Since no rationale was given for the Carrier's determination of guilt on the subject charges, it must be assumed that it credited the letters of the three passengers and discredited those of the Claimant and his fellow worker. It remains, however, that sofar as the charged discourtesy is concerned the entire record on both sides simply consists of five pieces of correspondence, none of which was ever verified or attested in person by their respective authors.
While there is abundant and settled precedent that it is not the function of this Board to assess the credibility of witnesses or resolve conflicts in the evidence, it has also been held that the case is somewhat different where no witnesses are called and the only evidence in the record consists of conflicting written statements. As was said in Award 5277 (Wyckoff):
It is also clear, and supported by abundant precedent, that in disciplinary cases the burden of proof rests with the Carrier (e.g., Awards 11556, 10405, 8994, 6615 4262), and that this burden can be satisfied only by the production of substantial evidence of probative value (e.g., Awards 11573, 10790, 5743, 2811). Given these decisional precepts the issue in this case is not whether the Carrier has the right, without more, to introduce written complaints by passengers about employe comportment and not calling the complainants themselves to substantiate them. Indeed, it was readily acknowledged by the Organization that realistically it is not to be expected that the Carrier produce in person the offended patrons, since it has neither the power to compel their attendance nor would it make public relations sense for it to attempt to do so. Moreover, the Board precedents cited by the Carrier in support of its position in this regard are impressive (e.g., Awards 2770, 4976, 6866, 7866, 8503, 8300, 8683, 9624, 11237, 11342).
Rather the issue still is whether, absent any witnesses, the Carrier meets its overall burden of proof by presumably relying, without explanation, on the passengers' complaints and discrediting the statements offered on behalf of the Claimant. On this score we turn again to Award 13240 (Dorsey) supra, where it was stated and held:
It is interesting to observe that in its ex parts submission herein the Carrier emphasizes that, for its part, it "demands strict proof by competent evidence of all facts relied upon by Claimants, with the right to test the same by cross-examination, the right to produce competent evidence in its own behalf at a proper trial of this matter and the establishment of a proper record of all of the same." This demand may well be a routine one inserted in all the Carrier's numerous submissions to this Board, but on the state of this record it seems to suggest a dual standard of due process for the Carrier on the one hand and the Claimant on the other. Whether or not this is further revealing of the inherent infirmities of the proof in this case, in balance and limited only to the entirely hearsay character of the record in this case, we hold that the Carrier did not sustain the charge by substantial evidence.
FINDINGS: The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds and holds: