JOINT COUNCIL DINING CAR EMPLOYEES
(Local 351)
STATEMENT OF CLAIM: Claim of Joint Council Dining Car Employees Local 351 on the property of the Erie-Lackawanna Railroad, for and on behalf of Maxwell Williams, Chef Cook, that he be returned to service and compensated for net wage loss, with vacation and seniority rights unimpaired since April 6, 1966, account of Carrier dismissing Claimant from service on that date, in abuse of its discretion and in violation of the Agreement.
The Claimant was a Chef Cook on Diner No. 769 of Train No. 1 of the Carrier, departing from Hoboken, New Jersey on February 18th, 1966.
Under date of March 14, 1966, the following communication was addressed to the Claimant:
In accordance with Rule 29-Investigation, Appeal and Decisions, of Agreement effective November 15, 1961, between Erie Lackawanna Railroad Company and their employes represented by Joint Council of Dining Car Employees Union, Local 351, you are hereby notified to present yourself for investigation in connection with your alleged violation of Rule 2 of General Rules for Guidance of Dining Car Department Employes effective September 1st, 1954, for allowing food order consisting of bacon-potatoes-eggs, a pot of coffee, and a dish of ice cream to leave your kitchen without receiving chef's portion of meal check to cover such food order while assigned as chef on diner of Train No. 1, Friday, February 18th, 1966, between Hoboken, New Jersey and Scranton, Pennsylvania.
This investigation will be held in the office of Superintendent, Dining Car Dept., Passenger Terminal, Hoboken, New Jersey on Monday, March 21st, 1966 at 1:30 P. M.
At this investigation you may have present witnesses and/or representative of your own choice, without expense to the Company. If you are unable to attend this investigation you should contact the undersigned at once giving the reason as failure to report at the time and place specified herein will be considered as an admission of guilt and grounds for discipline.
The hearing took place as scheduled with the Claimant present together with representatives of his Union. The hearing, in this dispute, was held concurrently and simultaneously with the hearing of the charges against Richard Phillips, who was the Waiter-in-Charge of the dining car on the date in question. The testimony adduced at the hearing is contained in one transcript, a copy of which is attached to and made a part of the record.
Under date of April 7, 1966, Claimant was advised that he was dismissed from the service of the Carrier.
An examination of the transcript of the investigation discloses that the Claimant did not object to the notice of the hearing received by him; that lie had sufficient time to prepare for the investigation; that he was ready to proceed with the investigation. Not having raised nor offered objection to the investigation taking place, such failure, on his part, constitutes a waiver. See Awards 15027, 14573, 14444.
The unorthodox manner in which the hearing was conducted, in and of itself, will not void the hearing, unless it can be shown that the Claimant was prejudiced thereby. We think, however, that the Claimant was prejudiced by the manner in which the investigation was conducted.
The transcript of the testimony adduced at the hearing is a lengthy one and most of it relates to the charges preferred against the Waiter-in-Charge and does not, in any manner, apply to the Claimant herein.
During the course of the examination of Mr. Elwyn the question a-rose as to the number of waiters and cooks on the train. His testimony on that question is significant. He testified as follows:
This Board has held, on numerous occasions, that in a discipline case it is not its function to determine the credibility or weigh the evidence nor will it substitute its judgment for that of Management as to the degree of the discipline. We have held, however, that in view of the nature of the proceeding, that:
It may be that the Claimant failed to carry out his duties, under the rule, as one of the chefs of the dining car in question, but we fail to find any direct, positive, material or relevant testimony in the record to sustain such contention.
What he did or did not do can only be determined from the record before us and then only by conjecture, speculation and inference. That is not enough. We may not and cannot speculate as to nor may we infer or assume facts not in the record.
The burden was on the Carrier to prove by positive, material and relevant evidence that the Claimant, in this dispute, was guilty of the charges preferred against him. We find that this the Carrier has failed to do, especially when we find that the testimony adduced at the hearing reveals that there were two cooks or chefs on the train in question, the Claimant and one J. Flamer.
We are not and should not be concerned, in this dispute, with what. determination might be made with reference to the charges preferred against the Waiter-in-Charge, which investigation was conducted simultaneously with the charges preferred against the Claimant. Each case must be judged and stand or fall on its own set of facts and circumstances.
We find and hold that the Carrier's action was arbitrary, unjust and without any foundation in law and fact, and that:
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