BROTHERHOOD OF RAILWAY AND STEAMSHIP CLERKS, FREIGHT HANDLERS, EXPRESS AND STATION EMPLOYES
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood (GL-5640), that:
EMPLOYES' STATEMENT OF FACTS: R. K. Offterdinger, age 42, was employed by the Carrier in its Transportation Department on the Group 2 position of Messenger at Lynchburg, Virginia on November 1, 1948, and worked this postion continuously until same was abolished on February 1, 1963. As a result, it was necessary for Offterdinger to exercise seniority displacement rights on the position of Crew Caller at Roanoke, Virginia, approximately fifty miles distant. Such displacement was made in February, 1963, and, after several weeks of training at his own expense, Claimant actually began work during March of 1963. He worked this assignment continuously until 8:00 A. M. on November 26, 1963, at which time he was held out of service by the Carrier.
Offterdinger was instructed to report for formal investigation on December 2, 1963. This investigation was postponed until December 6, 1963, at the request of the Employes. Such investigation was held at 8:00 A. M. on this date, the charge reading as follows:
Under date of December 20, 1963, the Superintendent of Terminals advised Claimant as follows:
of Claimant's own craft and subject to the same Agreement. Copies of these three statements were furnished Claimant's representatives during property conference. No refutation of the import of these statements was even attempted, nor was Claimant's lack of ability ever questioned or denied. These statements provide =pie support for the veracity of Carrier's decision to disqualify Claimant, and they prove the absence of any arbitrariness, capriciousness, or unreasonableness on Carrier's part in administering that decision.
Summarizing, Employe grounds of belated disqualification (sole defense advanced in Claimant's behalf) are defeated by your Board's holdings in previous Awards cited herein; Claimant's lack of ability is affirmed by other closely associated employes, including members of his own craft; ample justification of disqualification is demonstrated by the deficiencies outlined by employe affiants in Carrier's Attachments D, E, and F; propriety of disqualification in the light of such circumstances is fully supported by the previous Board decisions cited in reference thereto. The case is clearly devoid of merit and denial in its entirety is respectfully requested.
OPINION OF BOARD: The Claimant herein was initially employed by the Carrier on November 1, 1948 as a messenger. This position was abolished on February 1, 1963, whereupon he exercised displacement rights to position of Crew-Caller at Roanoke, Va. approximately fifty miles distant. Although the Claimant was not required to operate a motor vehicle while previously working as a messenger, as a Crew Caller his duties entailed such operation in order to call for and transport train crews.
On November 26, 1963, about twenty minutes after reporting for duty, the Claimant was involved in an accident while driving a Company vehicle. This vehicle proceeding about 15 miles per hour, on wet pavement, struck the rear of a privately owned automobile traveling in the same direction in the city of Roanoke. Damages to the private car amounted to approximately $10.00 and to the Company-owned vehicle $300.00.
Thereafter, the Claimant drove the vehicle from the scene of the accident without, at that time, notifying the police department. Subsequently, his supervisors as well as the police authorities were notified of the said accident.
Predicated upon the Claimant's failure to report the incident to the police department prior to moving his vehicle from the scene, a formal investigation was conducted into the matter. What occurred thereafter is best depicted by the following statement contained in the Carrier's ex parts submission:
"Having found Claimant guilty by his own admission of failure to report the accident as required, there remained the question of discipline to be applied. However, consideration of the matter led to discovery of other factors which showed the case to merit disqualification, rather than an application of discipline that, in view of the conditions involved, could not be expected to effect any material improvement. Consequently, instead of applying any form of discipline, Offterdinger was, by letter dated December 20, 1963, notified that ` * * * you are being disqualified from the Group 2 Clerk-Caller position which you now hold'." 14063-22 665
Prior to analyzing the merits of this dispute we are required to dispose of the Carrier's contention that the claim submitted to this Board was expanded from the one originally pursued on the property.
The Claimant was notified by letter dated December 20, 1963, of the results of the investigation. Thereafter, the General Chairman by letter dated December 30, 1963, appealed the December 20th decision. Said letter follows:
As provided for in Rule 27 of the Clerks' Agreement, we hereby appeal the decision of Mr. J. R. Neikirk, Superintendent Terminals, as contained in his letter dated December 20, 1963, concerning disqualification of Clerk-Caller R. K. Offterdinger account violation of instructions when he failed to report collision between N&W Vehicle No. 811 and auto owned by Mr. K. R. Lovern.
This disqualification was a result of formal investigation conducted at 12th Street Yard Office on December 6, 1963.
It is the position of the Employes that Clerk-Caller R. K. Offterdinger cannot be disqualified from the position of Clerk-Caller after having worked the position for a period of 10 months.
'Therefore, we request that Clerk-Caller Offterdinger he returned to the position of Clerk-Caller, Roanoke Terminal, and that he be compensated for all wage loss sustained on and after November 27, 1963.
A reading of this appeal letter indicates that it refers to a formal investigation . . . account violation of instructions when he failed to report collision * * * cannot be disqualified from the position of Clerk-Caller after having worked the position for a period of ten months.
The Carrier takes exception to the phrase contained in Part I of the Organization's claim to wit:
The facts contained in the record do not support the Carrier. We need only refer to the correspondence conducted on the property to recognize that an investigation was conducted for failure to report collision. This investigation was held pursuant to Rule 27-Discipline-Investigation, as provided therein:
The facts as presented in the record support the conclusion that the investigation was conducted for the purpose of determining whether any discipline was warranted. Nevertheless, the Carrier insists that it did not discipline the Claimant, but instead, it disqualified him. Therefore, the claim as submitted to this Board is not contrary to the Organization's claim on the property, i.e., disqualification after ten months in same position following investigation on a dissimilar alleged charge (failure to comply with Rules and Instructions governing the use and operation of Norfolk & Western owned Highway Motor Vehicles).
It is, therefore, the considered opinion of this Board that the matter is properly before us at this time. Hence, having disposed of the threshold question, we now can proceed to the merits of the dispute.
There are a number of issues raised in this controversy which we feel constrained to discuss. These issues may be stated as follows: 14063-24 667
The Carrier concedes that the Claimant herein held this position for approximately ten months before he was held out of service. It is, therefore, the Organization's contention that once an employe has complied with Rule 10, i.e., he has held the position for thirty days or longer, he cannot thereafter be disqualified. In effect, the Organization is advancing a principle which is alien to the labor relations field. Undoubtedly, we would agree that once an employe has acquired seniority in a classification, he cannot arbitrarily be disqualified or displaced by a junior employe. However, it is also recognized that under certain conditions, one may be disqualified if he subsequently demonstrates his lack of ability to perform the assigned job duties. In the absence of specific language to the contrary, and this agreement is silent on this phase, there is no guarantee that an employe will continue to remain on a job even though he has met the initial time period qualification. (See Award 5071.)
In addition, the Organization further argues that Rule 10(e) requires that the Local Chairman "be notified in writing, the reason for any disqualifiication." Here, Section (e) refers to the condition set forth in Section (d) of Rule 10-that one may be removed from the position at any time before the expiration of the qualifying period of thirty working days. Under such situation, the Carrier is required to notify the Local Chairman. In the instant dispute, therefore, this provision of Rule 10 is not applicable.
The next issue to be discussed concerns the question whether the Carrier may disqualify an employe as a disciplinary measure. The record indicates that following the accident in which the employe was involved, an investigation was conducted under Rule 27, the discipline rule. The purpose of this investigation was to determine whether the employe violated instructions in failure to notify police authorities of such accident, prior to removal of his vehicle. The investigation was concerned solely with this single question -and it was found that the Claimant had moved the company-owned vehicle without following the prescribed procedure. Thereupon, having found the employe guilty of the alleged charge, the Carrier properly could have exercised its right to discipline him for a violation of the rule. In assessing a penalty, previous infractions may be considered in order to determine a proper penalty. A time-honored principle followed in disciplinary procedure is the requirement that the penalty should reasonably conform to the breach.
Without necessarily conceding that disqualification is a proper penalty, under certain circumstances, for the purpose of this analysis we are prepared to accept the principle that disqualification could properly be imposed as a form of discipline. However, the Carrier now contends that it did not discipline the Claimant, following the investigation. Instead, it disqualified him on the basis of certain documents submitted after the investigation was concluded.
We cannot agree that the Carrier complied with the proper procedure in this instance. We would be more inclined to support the Carrier's position in the instant dispute, if the discipline imposed on the Claimant was based 14063-25 668
on the investigation and it was then determined that the proper penalty was disqualification. By its action, the Carrier lulled the Claimant into neglecting to exercise his rights under Rule 28. Pursuant to said Rule, an employe who considers himself otherwise unjustly treated could file a written request for a hearing. Thus, if the Carrier had initially acted to disqualify the Claimant, the employe would then have been relegated to Rule 28.
We would be inclined to accept the Carrier's argument that the employe lacked the qualifications to properly perform his job, nevertheless, we believe that it was incumbent upon the Carrier to accord the employe and his representatives the right of due process. (See Awards 2654 and 4607.)
In view of the conclusions reached by us that the Carrier failed to follow the proper procedure in the instant dispute, the third issue as posited, namely, whether the Carrier was required to initially conduct an investigation as to such employe's qualifications before it could disqualify him, becomes academic. However, in passing, it may be noted that reference was made to Rule 28. Under proper conditions, action could have been instituted by the Carrier to disqualify the employe, and the employe would then have been required to request a hearing pursuant to Rule 28.
We are compelled to deny the Carrier's assertion that the results would have been the same even if it had not subsequently changed the label from discipline to disqualification. As we have indicated, if the Carrier had proceeded on the disqualification principle initially, the employe if he so desired could have requested a hearing under Rule 28, which was his prerogative. Hence, the claim is required to be sustained, irrespective of the merits of the dispute.
The Board having determined that the Carrier wrongfully disqualified the Claimant, it is directed that he be reinstated with all seniority rights preserved and that he be compensated for any loss of earnings from November 26, 1963. In this respect, the Carrier is entitled to deduct from such payment, any wages which the Claimant earned or could have earned with reasonable diligence.
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
That the Carrier violated the Agreement to the extent indicated in the Opinion.
We are in accord with a portion of the Opinion of Board in which, after properly analyzing Carrier's violative actions clearly set forth in the Record, the Referee held in part:
" * * * Hence, the claim is required to be sustained, irrespective of the merits of the dispute.
We are inclined toward the proposition that Claimant was not the only one "lulled." After a proper review and decision based on the issues before him, the Referee then embodied in his "Opinion" a new issue, which was not raised by the parties on the property, or by any Member of this Division. The Referee stepped far beyond the authority vested in him by the Railway Labor Act and Circular No. 1, by concluding that:
As heretofore stated, that "conclusion" has no business in the Award, as it is raising an issue which neither of the parties to this dispute brought before this Board for adjudication. It has, of necessity, created an issue, in that who is to now be the judge of what is "reasonable diligence" and what is not?
For sake of argument, let us consider an employe who had abundant diligence, and worked extra jobs for additional income, working outside his regular hours for 2 hours a day, or on his rest days, while also being actually employed by Carrier during other hours. Are we to accept an argument that a 'Carrier would be permitted to deduct from his Carrier earnings any supplemental earnings he had made in such outside employment? Do we have the right to conclude that Carrier had the prerogative to invade the privacy of that individual? That would be involuntary servitude. The Board has held that what an employe does when off duty and not on the property of his employer is of no concern of an employer (Award 6332).
"We would suggest, that in the negotiations between the parties on the property as what amount is due Claimant consistent with this 14063-27 670
In many fields of endeavor, outside employment is acceptable. As a general rule, the railroad industry is not an exception, as many railroad employes have and still do supplement their railroad compensation with outside earnings in one way or another. It is a miscarriage of justice that this Referee did not consider that such a condition could have prevailed in this dispute and, further, that the parties to the Agreement, and not this Board, have the right to decide such an issue consistent with the Award.
Looking at it another way, if an employe rests on his "laurels," he will be fully compensated for what Carrier should have paid him but, because of such violation, did not pay him; but if this same employe gets off his "laurels" and finds a job so that he can support his family, he is penalized for so doing.
We are convinced that the Railroad Unemployment Compensation division of the Retirement Board has a fair concept of what is "reasonable diligence" and what is not, and that subject should have been left for decision by that Tribunal if such a question became an issue between the parties as a result of this Award. It was not an issue raised by either party to this dispute.
In this adoption session, this Labor Member asked the Referee the reason for the inclusion of the last sentence in his "Opinion of Board." His answer was that it was the Board's "policy" to include such language. This "policy" to which he referred, and with which he now contends he is so familiar, differs considerably from the "Opinion of Board" and "Award" in the following Awards:
Now through an interpretation, Carrier seeks to have deducted certain wages in (sic) it contends Claimant earned in outside employment during the period of discipline. No claim was made for such an offset at the time of the original hearing before the Board. This Referee did not consider the propriety of such an offset or determine the effect of any rule of the Agreement in regard to such an offset because the issue was not discussed or argued before him.
Under the circumstances of this case, therefore, it is not now proper, through an interpretation, to consider this issue."