THIRD DIVISION
(Supplemental)
BROTHERHOOD OF RAILWAY AND STEAMSHIP CLERKS, FREIGHT HANDLERS, EXPRESS AND STATION EMPLOYES
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood (GL-5218) that:
Though it was not presented on the property it was urged at the panel discussion that there was a fatal omission in the record, arising from the following circumstances:
Claimant was served with a notice to report for an investigation for a reported violation of Rules by the Superintendent Terminal, H. A. Linderer, for a hearing at his office. The hearing was conducted by F. C. Corner, Terminal Trainmaster, without Superintendent Linderer being present. After the hearing Claimant received no notice of decision by the Terminal Trainmaster, who conducted the hearing, but was notified by the Superintendent Terminal that as a result of the hearing, he, the Claimant Levitt, was suspended.
It is urged by Petitioner that the testimony is in some respect conflicting, that only the hearing officer who presided at the hearing was qualified to make findings as to credibility and that he did not do so, consequently it cannot be determined whether there is evidence to support the act of suspension by the Superintendent Terminal and as a result Carrier failed to award Claimant a fair and impartial hearing. Award 13180 (Dorsey) is offered in support of this position.
As applied to the record and facts in this case we cannot concur in the decision arrived at in Award 13180. We must, necessarily, start out with the premise, that in the absence of an Agreement restricting the powers of management, the Carrier would have an inherent right to dismiss or discharge an employe without a hearing. On this property, however, Carrier has restricted itself by Agreement in the matter of discipline of its employes as contained in Rules 26 to Rule 31, inclusive, of the Agreement. Having examined these Rules we can find nothing that prescribes who shall prefer the charges, conduct the hearings nor that the officer conducting the hearings must render the decision or assess the discipline.
We have held in many awards that the Carrier could not be held to the same degree of perfection in the conduct of discipline cases as would be expected at a trial in a court of law. It is a matter of common knowledge that in court of law, trial and appellate judges frequently delegate to referees the sole and primary duty of taking testimony, this procedure including matters concerning discipline-such as, in contempt proceedings wherein domestic relations are involved, juvenile court hearings, disbarment proceedings involving the discipline of lawyers, and in many other proceedings. In all of these instances just referred to the trial or assigning judge renders the utlimate decision.
In the instant case we cannot assume there has been a complete lack of co-operation between the Terminal Trainmaster and the Superintendent in arriving at a determination of the disposition of it. If that were to be the claim such an issue should properly have been raised on the property so as to have afforded the Carrier an opportunity of rebutting it. It could not be raised for the first time here. Petitioners position in all of the foregoing respects is without merit. See Award 10015 - Weston; Award 2608.
1961, Claimant Levitt was notified to report at the office of the Superintendent which notice, with consent, was amended to read as follows:
A hearing was held and was conducted by L. C. Carner, Terminal Trainmaster; the only objection raised at the hearing was as to the preciseness of the charge, it being contended by the Claimant that it was too general in form to give him any notice as to what he was charged with as the charge merely charged violations of company Rules 702 and 772.
Rule 702 is a general rule governing the conduct of Carrier's employes and had the charge been confined to Rule 702 alone there might have been just cause for Claimant to complain that notice did not give him sufficient information as to the precise offense of which he was accused. He was also charged, however, with a violation of Rule 772 which provides, as follows:
Claimant Levitt, though he had been in Carrier's employ for twenty years, denied that he had any knowledge of this rule or that it ever had been called to his attention. He asserts that he had never been furnished with a copy of the Rules -Transportation Department. He admits that there were "No Smoking" signs posted on the Mill Street platform at Springfield where he was employed. He further admits that there was a bulletin board at 13383-4 407
'the Freight House and that there might have been a bulletin on the board calling attention to these Rules but stated that he had made no effort to supply himself with a copy of the Book of Rules. He also concedes that on July 6, 1961 he had been cautioned about smoking on the Mill Street platform. All of this would indicate that Claimant should have had precise knowledge of what he was being charged with.
At the hearing there were two witnesses who testified that on the platform Claimant had a lighted ciragette in his hand both on July 6 and July 6. Claimant admitted that on each occasion cited he had a cigarette in his hand but denied that it was lighted. A witness who testified in Claimant's behalf testified that he. Levitt. had been smoking before he got onto the platform but flipped the fire off the cigarette as he was stepping off from the cars but didn't know what was said from thereon.
We have no right to substitute our judgment for that of Carriers; there was sufficient evidence to support Carrier's charge that there had been a violation of Rule 772. The discipline assessed was not so excessive as to indicate Claimant had not had a fair and impartial trial. The Agreement was not violated.
FINDINGS: The Third Division of the Adjustment Board, 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