1. The Carrier violated the Clerks' Agreement when, on May 25, 1964, it withheld from service Robert M. Winters, Rate and Tariff Clerk, General Office Building, St. Paul, Minnesota, and subsequently, on June 16, 1964, it summarily dismissed him.
3. Clerk Robert M. Winters shall now be compensated for all wages and all other losses sustained account of having been withheld from service and subsequently dismissed.
Winters was not called as a witness. Mrs. Winters testified, however. At first she stated she had reported her husband sick although knowing he was not. Then she affirmed that "he was actually sick . . . even his father said, `Well, Bob is terribly sick down at the county jail'. . he said that Bob was sick, he was dizzy and that Bob had an upset stomach. . . I knew he was sick on Monday morning . . and Monday night his father told me he was sick." Mrs. Winters said she had no direct communication with her husband while he was in jail, but, "knowing my husband, I knew he probably would be sick under this condition" because of the tension he would be under.
This evidence does not demonstrate that Winters was guilty of an offense warranting dismissal.
Insofar as the record reveals, Carrier does not have a rule calling for discharge if an employe is arrested. Nor would such a rule be proper. The principle that a person is deemed innocent until proven guilty needs no elaboration here.
There may be occasions on which an employer may appropriately suspend an employe who has been indicted for a serious crime pending outcome of the trial. But that did not occur in the instant case. On June 15, 1964, when it discharged him, Carrier obviously did not know whether Winters had committed a criminal act or whether he would be freed of the charges against him.
Since no evidence was brought forward at the investigation concerning the reason for Winters' arrest, there is no basis for concluding that Carrier would have disapproved his absence, had it been informed of his incarceration on May 18. Information on this score which was submitted to the Board, but not made part of the investigation, cannot be considered now.
It is significant, moreover, that Carrier received timely notice of Winters' absence. There was no violation of reporting rules (unlike the situation in many of the cited cases). Carrier was able to adjust its work assignments with a minimum of disturbance. Moreover, there was no effort to absent himself for some ulterior motive, to attend a ball game or a picnic, or the like.
What, then, of the reason given for his absence? First, it is important to note that from May 18 to 20 Winters had been incommunicado. But he called his superior immediately upon release from jail and reported where he bad been. There was no attempt on his part to dissemble. Additionally, there is no evidence whatsoever that Winters instructed his wife to report that be was ill or to hide the fact of his arrest. The circumstances here were quite different from those in the usual situation where an employe must be held responsible for information furnished the employer by a member of his family.
The presence of some evidence at the investigation that Winters actually was sick, and the absence of any to the contrary, lends further support to the conclusion that the employe committed no offense against the Carrier on May 18 to 20. 13333-4 871
Under all these circumstances, it must be found that since Carrier's dismissal decision does not find foundation in the record; it represents an arbitrary action, which should be set aside. In accordance with Rule 57 (a) an appropriate notation indicating exoneration should be placed upon the employe's record, and he should be reimbursed for any loss of compensation incurred, and returned to his former position.
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
Claim sustained. Carrier shall reinstate Robert M. Winters to his former position, reimburse him for any loss in compensation incurred and place an appropriate notation upon his record indicating exoneration.
In Award 13883 the Referee is substituting his judgment for that of the Carrier-a function that this Board has many times held is not within its province and concerning which many citations were furnished the Referee. Such action is self-evident where, after summarizing the testimony taken at the trial, the following statement is made:
Thus the Referee did not find that Winters was not guilty. He merely found that he was not guilty of an offense "warranting dismissal." Since Winters was found guilty, the Referee should not have substituted his judgment for that of the Carrier.
After summarizing the evidence and concluding that it did not demonstrate that Winters was guilty to the extent that dismissal was warranted the Referee thereupon proceeds to make some additional remarks in an. effort to justify his ultimate conclusion. Among such remarks is the following: 13883-a 872
The record may be searched in vain for any evidence, or even an assertion, that Winters was held incommunicado. To the contrary, it shows his wife testified to the effect that Winter's father had seen him in jail on Sunday night, May 17.
Next the Referee comments that upon release from jail, Winters called his superior and reported where he had been. The Referee fails to state that this call took place after the superior had become aware of the true reason for Winter's absence through newspaper publicity. But because Winters did call his superior, even though it was after the true reason for his absence became public knowledge, the Referee commends and rewards him on the erroneous basis that:
The fact remains that concealment did take place, and any permission that may have been granted to be absent was obtained through misleading or incomplete representation.
The conclusion that the dismissal decision of Carrier does not find foundation in the record is not a finding that Claimant is free of responsibility. Rule 57 of the effective Agreement, and which was called to the attention of the Referee, provides that an employe will be reimbursed for any loss of compensation incurred only if he is found free of responsibility. As Claimant was not found to be free of responsibility, Award 13883 is in palpable error.