THIRD DIVISION
(Supplemental)
TRANSPORTATION-COMMUNICATION EMPLOYEES UNION
(Formerly The Order of Railroad Telegraphers)
STATEMENT OF CLAIM: Claim of the General Committee of The Order of Railroad Telegraphers on The Pennsylvania Railroad Company, that:
OPINION OF BOARD: On November 17, 1961, Claimant, a Block Operator, had an accident during the course of his work and hurt his back. On December 29, 1961, Carrier's Assistant Supervising Operator, Mr. F. J. Edzwald, held a hearing to investigate the "alleged personal injury"; on January 25, 1962, Mr. Edzwald conducted a trial of Claimant on charges that on the date of the accident Claimant had been in violation of Rule "M" of the Book of Rules for Conducting Transportation. Following the trial Claimant was notified that he would be suspended for 10 days as discipline for his violation of Rule "M"; the suspension was subsequently reduced, "as a matter of leniency," to 3 days.
As described by Claimant during Carrier's hearing on the injury, and uncontroverted at both that hearing and at the trial, this is what occurred:
There is no evidence that Claimant was ever notified precisely what part of Rule "M" he was charged with violating; but early in the trial Mr. Edzwald, who questioned Claimant, called his attention to that part of the Rule which states: "Employes must exercise care to avoid injury to themselves and others," and Carrier in its correspondence and in its Ex Parte Submission indicated that it was this part of Rule "M" which it found Claimant to have violated. In his letter dated March 21, 1962, announcing reduction of the penalty, Carrier's Superintendent, Personnel, more precisely identified the carelessness of which Carrier found Claimant guilty:
Thus Carrier did not find Claimant guilty of carelessness for failing more promptly to report the accident so that more prompt treatment might have reduced the extent of his injury, nor did Carrier find him guilty of carelessness for not sooner discovering, by checking or otherwise, that the tension spring was loose, both of which charges Carrier's questioning at the hearing and trial indicated Carrier had in mind; Carrier found him guilty of carelessness only because, instead of turning around in the chair and leaning forward to throw the lever, he leaned back in the chair and reached back to perform the task.
In the Joint Submission appealing the decision of the Superintendent, Personnel, to the Manager, Labor Relations, the Organization contended in part "that the charge is neither specific nor correct;" arguing:
But this contention was not pursued by the Organization in subsequent appeal steps, nor taken as a position in the Organization's Ex Parts Submission to us. There the Organization only took the position "that the discipline assessed was unduly harsh and severe and unmerited under the facts and circumstances set forth in the transcripts."
Thus there is no contention before us that the trial was not fair or impartial or that there was any procedural defect in the handling of the matter. We are left with the issues of whether Carrier's acts in this case were adequately justified: first, in finding Claimant guilty, and then, if so, whether the discipline was reasonable.
According to Carrier's argument in its Ex Pane Submission, we should not upset its decision that Claimant was guilty of the Rule violation unless we have conclusive proof that the decision was arbitrary, capricious or unreasonable. This is not a correct statement of the situation. In discipline cases the burden is on Carrier to prove that the guilty verdict is adequately supported by evidence: unless Carrier's determination of Claimant's guilt is supported by a preponderance of weighty evidence, we will not support a guilty verdict. It is the penalty which we would be reluctant to alter without proof that it is arbitrary, capricious, unreasonable or unjust-in discipline cases it is in the area of penalty that we are reluctant to substitute our judgment for Carrier's.
Does the evidence in the transcripts adequately support Carrier's conclusion that Claimant was not exercising care to avoid injury to himself within the meaning of Rule "M" when he leaned back to pull lever No. 25 instead of turning his chair around and facing the lever? According to the transcripts, Claimant repeatedly insisted that it was safer for him to pull the lever by leaning back. In the course of the December 29th hearing:
There is no positive evidence in the transcripts to support the implication in Mr. Edzwald's questions that swinging around in the chair to pull the lever was a safer procedure than leaning back in the chair; the implication is supported only by inference drawn from the question itself. To accept this as evidence of any substantive weight not only would we have to be convinced that leaning back in a swivel chair fitted with a tension sprung reclining back is inherently more hazardous than swivelling around in it, but we would also have to be convinced that such a differential in hazard is so self-evident as to require no proving. We find no basis to adopt either of these convictions.
'Thus we conclude that Carrier did not have adequate evidence before it to conclude that Claimant was guilty of the carelessness charged against him. Carrier's repetition of the implication in Mr. Edzwald's question as a fact on the basis of which it found Claimant guilty is simply not reasonable.
Since we find that Carrier's decision that Claimant was guilty was not based on adequate evidence, it is not necessary for us to consider whether the penalty was reasonable. We will modify the remedy claimed, in Item 3. of the Claim by requiring that Carrier compensate Claimant for all time lost from his assignment as a result of the suspension and trial; there was no showing that Carrier is responsible to pay for time spent by Claimant at appeal hearings.
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
CARRIER MEMBERS DISSENT TO AWARD 15582,
DOCKET TE-14470
The majority seriously misstates the basis upon which this Board should consider the trial record in disciplinary matters. It has been repeatedly established by prior awards that the only proper function of the Board in discipline matters is to determine whether there is some substantial evidence to sustain the Carrier's action. This Board has repeatedly stated the proper tests. The following quotations are only a few of the many decisions which have been made which indicate that the tests adopted by the majority in this case are erroneous.
"Our function in discipline cases is not to substitute our judgment for the company or decide the matter in accord with what we might or might not have done had it been ours to determine but to pass upon the question whether, without weighing it, there is some substantial evidence to sustain a finding of guilty. Once that question is decided in the affirmative the penalty imposed for the violation is a matter which rests in the sound discretion of the Company and we are not warranted in disturbing it unless we can say it clearly appears from the record that its action with respect thereto was so unjust, unreasonable or arbitrary as to constitute an abuse of that discretion."
"Organization's contention that Carrier discharged ticket seller 'without conclusive proof' that she was involved in irregularities overruled because ' * * * the rule is well established that in disciplinary cases it is not the province of the Board to weigh conflicting evidence or substitute its judgment for that of the Carrier (Awards 7020, 6866, 5427 and many others), and that even though evidence is denied or disputed the Board will not interfere with disciplinary action based on substantial competent evidence (Awards 9178, 9046, 9036, 8888, 8832, 8808 and others). Thus we are not in a position to consider whether the evidence is conclusive, or even to decide whether the weight of the evidence sustains the action appealed from. Our authority in that respect is limited to the question whether there is such a lack of any substantial evidence as to justify the conclusion that the Carrier's action was arbitrary, capricious, without just cause, or based on doubt or speculation."'
"The Board has followed the rule of this Division that we do not resolve questions as to the credibility of the witnesses nor the weight to be given their testimony; that is the function of the trier of facts. This does not mean we were or are precluded from carefully reviewing all of the evidence of record to determine whether it supports the action taken. Our appellate function is necessarily limited and we should refrain from substituting our judgment for that of the Carrier in disciplinary cases unless there is an abuse of discretion or substantial error."
"In discipline cases, the Board sits as an appellate forum. As such, our function is confined to determining whether: (1) Claimant was afforded a fair and impartial hearing; (2) the finding of guilty as charged is supported by substantial evidence; and (3) the discipline imposed is reasonable.
We do not weigh the evidence de nova. If there is material and relevant evidence, which if believed by the trier of the facts, supports the finding of guilt, we must affirm the finding."