NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Locket Number MS-24366
Edward M. Hogan, Referee
(Thomas E. Walsh, Sr.
PARTIES TO DISPUTE:
(National Railroad Passenger Corporation
STATEMENT OF CLAIM: This is to serve notice, as required by the rules of the
National Railroad Adjustment Board, of my intention to file
an ex parte submission on 30 days from date of this notice covering an unadjusted
dispute between me and the Amtrak involving the question:
The orginal decision terminating me dated November 12, 1980, and
issued after an investigation by W. E. Forkin, hearing officer, and the decision
denying my appeal by J. W. Hammers, Jr., Corporate Director - Labor Relations,
Amtrak, dated June 18, 1981, are against the weight of the evidence, or in any
event unduly harsh given my long years of service, upon which passengers have
favorably commended me. The specific issues in this case are:
1. 1 did not deliberately refuse service to passengers requesting
food items on the menu;
2. I did not improperly complete my 896 form prior to arriving
at Boston;
3. I did not complete my liquor kit forms or deny sale of liquor
improperly at New London;
4. 1 did not force the passengers to walk through eight cars to the
rear for food and service.^
OPINION OF BOARD: Claimant was dismissed from the service of the Carrier
subsequent to a formal investigation. Claimant's attorneys
contend that the Claimant was not afforded a fair and impartial hearing and
that the evidence did not support the charges as preferred by the Carrier.
Claimant began his service for the Carrier on April 15, 1974, and was dismissed
from the Carrier's service on November 12, 1980. Claimant was charged with:
"1. Refused service to passengers requesting food items on your
menu.
2. Had improperly completed your 896 Form by New London, C. T., two
and one-half hrs. Prior to arrival at Boston, totalling sales and
revenue for items that were still available for sale.
3. Had completed your Liquor Kit forms and denied sale of such item
at New London, C. T., two and one-half hrs. prior to arrival at
Boston.
Award Number 24960 Page 2
Locket Number MS-24366
4. For holding a bottle of opened Lowenbrau beer and glass containing
the beer in the icewell of the Am Cafe.
5. Forced passengers to walk through eight cars to the rear Am Cafe
for food and beverage service, when items were still available in
their car.^
Specifically, Claimant was charged with violation of Rules 1, K, and
L of the AMTRAK Rules of Conduct and Rule 8 of the Rules and Instructions Governing
On Board Service Employees.
Briefly stated, the record indicates that the Claiamnt, a Lead
Service Attendant, working in the head car, had requested the train conductor
to announce over the public address system that the head car was closed and
that anyone wishing food or beverage service should proceed to the rear car.
The record further indicates that the Claimant had requested this announcement
because he had experienced problems of unruly and boisterous conduct in the
head car. In New London, Connecticut, the Carrier's assistant regional director
of passenger services boarded the train and found that the Am Cafe in the head
car was closed and that passengers were going to the rear of the train for
service. Upon meeting the Claimant in the head car, the Carrier's representative
questioned the Claimant as to why service had stopped in the head car when
supplies were amply and readily available. Upon discussing the situation with
the Claimant, as well as with the train conductor, the Carrier's assistant
regional director removed the Claimant from service for refusing to sell food
and beverage items still available for sale, for Claimant's informing the conductor
that he was out of food and beverage items when there still was a number of
such items available for sale, for causing the Carrier a loss of goodwill as a
result of the Claimant's conduct. The Carrier's representative had also observed
an opened bottle of beer in the icewell at the Claimant's service area (which
Claimant indicated such bottle belonging to a passenger who would be returning
shortly).
The Claimant attended his investigation on November 3, 1980, in the
company of his union representative. This appeal has been filed by the Claimant's
personal attorneys, who were also present and at the Referee Hearing, and who
forcefully argued the Claimant's case before the Board.
We cannot agree with the contentions of the Claimant. It is a longstanding precedent of this
will not substitute our judgment for that of the hearing officer absent evidence
of arbitrary, capricious or discriminatory behavior or an abuse of managerial
discretion. Our thorough review of the record does not support the allegations
of the Claimant.
It is also long-standing policy and precedent of this Board not to
substitute its judgment for that of the hearing officer and Carrier. Again,
our review of the record indicates that the evidence as adduced at the formal
investigation supports the findings and conclusions of the hearing officer.
This Board was not present at the formal investigation. We were not able to
observe the presentation of evidence as was the hearing officer. We were not
able to ascertain the demeanor of witnesses as was the hearing officer. Clearly,
this Board is not a trier-of-fact. That is the duty of the hearing officer.
Our review of the record does not find evidence of the type described above
which would warrant our sustaining of the instant claim and contentions as
presented to this Board in the Claimant's submission.
Award Number 24960 Page 3
Locket Number MS-24366
Therefore, we find no basis on which to sustain the claim as
presented.
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 involvd 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 Agreement was not violated.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
ATTEST:
r
Nancy J. r - Executive Secretary
Dated at Chicago, Illinois, this 14th day of August 1984.