tease Award No. 16064
Docket No. TE-15139
NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
(Supplemental)
Daniel House, Referee
PARTIES TO DISPUTE:
TRANSPORTA77ON-COMMUNICAIION EMPLOYEES UNION
(Formerly The Order of Railroad Telegraphers)
THE PENNSYLVANIA RAILROAD COMPANY
STATEMENT OF CLAIM:
Claim of the General Committee of The
Order of Railroad Telegraphers on The Pennsylvania Railroad, that:
C. F. Harte, regularly assigned Block Operator at R Tower,
New York, N.Y., 10:00 P. M. to 6:00 A. M., was falsely accused of
the unfounded charge of "falsifying time cards for the following
dates: April 5, 6, 7, 8, 9, 12, 13, 14, 15, 16, 19, 20, 21, 22, 23,
26, 27, 28, 29, 30, and May 3, 1962." Charge was not proved at trial
held on May 17, 1962, and on June 18, 1962, Mr. Harte attended
appeal hearing to appeal the unwarranted discipline of a "Reprimand." His appeal was denied.
Carrier arbitrarily and capriciously disciplined Mr. Harte a
"Reprimand" for submitting the above time cards for what he considered a valid claim. Mr. Harts under the Agreement has the right
to submit time cards for what he considers valid claims under
Regulation T-F-1 and the August 21, 1954 Agreement, Article 5.
Therefore, the service record of Mr. Harte should be cleared
of the charge, the discipline of "Reprimand" should be cancelled,
and he should be compensated for all time consumed attending trial
and appeal hearing.
OPINION OF BOARD:
At the outset, Carrier objects to this matter
being considered on its merits because, it argues, the Organization failed
timely to proceed under the Time Limit Rule in Sections 1 (b) and 1 (c)
of Article V of the Agreement. The record shows that this contention of
the Carrier is wrong.
Claimant had been disciplined by a thirty-day suspension which he served
between April 4 and May 4, 1962. According to him, he felt that that discipline had been unjustly imposed, and, according to him, therefore, on May 4
he filed time cards claiming pay for work on the 21 working days of his
position during the suspension period; he wrote in the cards that he had
worked the regular hours of his position and made no written indication
on the cards that he had not, in fact, so worked, or that he intended the
submission of the cards to raise the question of the propriety of the suspension. He submitted the cards, which covered more than four weeksmore, in other words, than one pay period-all at once and attached together
as one bundle; time cards are normally submitted by employes for one
payroll period at a time.
Carrier charged Claimant with "falsifying time cards" and a hearing
was held on that charge on May 17, 1962, as a result of which the discipline of "Reprimand" was imposed by Carrier. The Organization claims
the discipline was unwarranted, and was arbitrarily and capriciously imposed.
The burden of one of the arguments of the Organization is that for any
discipline to be warranted in a case like this, it is necessary that the trial
develop evidence sufficient to lead to the conclusion that Claimant, in filling out and filing the time cards as he did, intended to defraud the Carrier;
we agree with this. Consequently, we conclude that a fair investigation in
this case would require the exploration by the hearing officer of all possible evidence on which to base a conclusion on this question without having
prejudged either that the question of intent was irrelevant or that there
was no question but that Claimant had culpable intent. The following colloquy near the beginning of the hearing, between Mr. DeMarco, Organization's Local Chairman, and Mr. Stewart, the Hearing Officer, shows that
the investigation was not fair because, before hearing any evidence, the
hearing officer bad decided this central question:
"STATEMENT BY MR. DeMARCO
Mr. Stewart, before we start this, continue this trial, for the
record I want to make a request. I'd like to request that this charge
be dropped for the following reasons. Mr. Harte has the right to
submit any claim for money alleged to be due him, as provided by
Regulation 4-T-1 and the August 21, 1954 Agreement, Article 5,
and if claims are not considered valid, the proper officer or officers
of the carrier must deny them and then progress accordingly as
provided by the Agreement. No employe can be disciplined for submitting what he considers a valid claim, no matter who advised him.
If it were otherwise, the employes would be deprived of their full
rights and due process under the agreement for fear of punitive
action taken against them, if the claims might not be valid and
supported by the Agreement."
"STATEMENT BY MR. STEWART
You have recorded your protest, and we will give it due consideration. We must insist on the trial being completed and the record
showing all that took place because of instances where a time card
can be improperly submitted by an employe. If an employe submits
a time claim for some form of penalty and so indicates on the time
card that it is a claim, obviously it will be handled as such, but
if an employe presents a time card showing that he worked a position which he did not in fact work, then the carrier takes
the position that they have the right to charge that employe with falsifying a time card:' (Emphasis ours.)
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Our conclusion from this that Mr. Stewart had already decided either
that the fraudulent intent was proved merely by Claimant's failure to indicate in writing a legitimate intent on the time cards, or that fraudulent
intent was not a necessary ingredient of the "crime"-"falsifying time cards"
(in either of which cases the hearing results were predetermined and the
hearing merely a show with no investigative purpose), is further supported
by the record of the hearing; in it we find that Claimant denied any fraudulent intent in making out and handing in the time cards as he did, and
we find no evidence on which a conclusion might reasonably be based that
Claimant did have a fraudulent intent. In addition, we find that after the
investigative hearing and after the reprimand had been ordered, Carrier
wrote in the Joint Submission:
"We do not know, we can only speculate, why the claimant submitted time cards indicating he had worked on the days he was off
serving suspension . . . .
If the charge against Claimant had been that he violated some regulation when he failed to indicate in writing on the time cards in question.
that he had not in fact worked the time claimed, a different discussion and
investigation would have been in order; but the charge was "falsifying" and
that charge necessarily connotes an intent to defraud. Only speculatively and
arbitrarily could the conclusion have been drawn from the record of Mr.
Stewart's investigation that Claimant intended to defraud the Carrier.
FINDINGS:
The Third Division of the Adjustment Board, upon the
whole record and all the evidence, finds and holds:
That the parties waived oral hearing;
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 Carrier violated the Agreement.
AWARD
Claim sustained.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of THIRD DIVISION
ATTEST: S. H. Schulty
Executive Secretary
Dated at Chicago, Illinois this 25th day of January 1968.
Keenan Printing Co., Chicago, 111. Printed in U.S.A.
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