UNITED TRANSPORTATION UNION VS BURLINGTON NORTHERN, INC.

 STATEMENT OF CLAIM: Request of former Chicago Yardman E. J.
 Riddle for reinstatement to service,
 with seniority unimpaired and pay
 for all time lost until reinstated
 to service with the Burlington Northern.

 PREFACTORY STATEMENT: This award replaces that rendered by this Board on December 3, 1973, the instant matter having been remanded to this Board by order of the United States District Court of Minnesota, Fourth Division, which order was declared by the United States Court of Appeals for the Eighth Circuit to be not subject, to appeal.












-- of Public Law Board No. 1207 in Award No. 8
















PLB. No. 1207 Award No. 8 Page 3.

 We reconsider the case pursuant to the U. S. District Court order.

 RULES ALLEGEDLY VIOLATED: Carrier's letter of dismissal ad
 dressed to Claimant and dated September 20, 1972 cites as the
 basis for discipline Rules 700, 700 (A) and 702 (C) Consoli
 dated Code of Operating Rules, which follow:










      "Employees must not engage in other business or occupation unless they have applied for and received written permission from the proper authority."


FINDINGS: Both the Organization and Carrier call attention to the alleged procedural errors. Carrier maintains that in
 PLB No. 1207
 Award No. 8
 Page 4

 the appeal process the claim for lost earnings was abandoned,
 rendering this claim one for leniency over which the Board
 has no jurisdiction. The Organization contends that Carrier
 failed to schedule the formal investigation within five
 days of its knowledge of the circumstances resulting in
 discipline. We find neither assignment of error to be valid
 and conclude that the matter is properly before us for all
 purposes. _.
 We examine each of the rules which Claimant is asserted to have violated, the violation of such rules being the only valid basis for his discharge..
 Rules 700 authorizes-Carrier to discharge employees who are ". . . disloyal, . . . (or) . . . dishonest . . . ."
 We interpret the U. S. District Court holding to mean that this Board exceeded its jurisdiction because of the fact that our original award detailed no specific violation of the Agreement by Claimant as a basis for discipline, such award simply justifying the discharge of Claimant because of "an irreconcilable conflict of interest".
 One of the reasons for the narrow scope of judicial review of the decisions of public law boards is that we operate in an esoteric field. Our original award was very brief, unlike many judicial opinions. But neither in its brevity nor in its failure to render a point by point dis-
 PLB 1o. 1207
 Award 1o. S
 Page 5

 cussion of issues was it unlike the thousands of other similar decisions that go unchallenged in the judicial system.
 We found "an irreconcilable conflict of interest". The transcript of the investigation was before us as were the rules which Claimant Riddle was found by Carrier to have violated: Our finding, to the initiated, simply meant that Claimant's disloyalty, a violation of Rule 700, was so palpable as to make further comment unnecessary. The distinguished employee member of this board obviously understood, for the decision was unanimous.
 We herenow reaffirm our holding that an irreconcilable conflict of interest resulted from Mr. Riddle's acceptance of "employment as an investigator for a law firm specializing in damage suits against railroad companies". We respectfully disagree with Judge Lord's contrary finding and apprehend that restatement of our holding is essential to preservation of the principle as a point for higher appellate courts to consider in the event of further appeal.
 We do not believe that when an employee accepts remuneration from a perennial adversary of his employer such employer should have to prove actual harm before discharging the employee for disloyalty. The law firm using her. Riddle's investigative product is a constant adversary . of Burlington Northern. It is as if an officer of Macy's
 PLB No. 1207
 Award No. 8
 Page 6

 accepts covert employment with Gimbel's. (Mr. Riddle's association was covert for many months and never voluntarily revealed by him.to carrier.)
 In persevering in the principle of our original holding we do not endeavor to break new ground; we simply restate the uniform holding of all known prior awards.on the subject.
 Decision No. 3310 of Special Adjustment Board No. 18 was authored by the distinguished referee, Thomas J. Mary, a former Arizona Supreme Court Justice as well as Governor of that State. The case involved a fireman on the Southern Pacific who was also a licensed attorney. Fireman (Lawyer) Waag undertook to participate in an F. E. L. A. case'on behalf of a fellow employee doing the investigative work and 'assisting the attorney who tried the case. There was no showing that he engaged in any shady tactics. Yet solely on the basis of such undertaking he was found to have violated the following rule:
        "Any act of hostility or willful disregard of the

        Company's interest will not be condoned."

        Judge Mabry wrote,

        "We can think of no more willful violation of .·.

        (the rule). This is certainly to be classified as

        `willful disregard of the Company's interest,' and

        therefore an act of disloyalty to the company."

Award No. 3253 of the Second Division, NRAB, upheld discharge of a car cleaner who was also a licensed attorney
 PLB No. 1207
 Award No. 8
 Page 7

 and who brought F. E. L. A. actions on'behalf of two employees.
 Decision.No. 3194 of SBA 18 and Second Division Award No. 1884 upheld in each instance discharge of an employee who solicited business for attorneys specializing in F. E. L. A. cases.
 A most interesting case is reported as Brotherhood of Railway Clerks v. Atlantic Coast Line Railway Co., 154 F. Supp. 71 (D.C., E.D.N.C., 1957), aff. 253 F 2d 753 (4th Cir., 1958). The discharged employee was a clerk who, after hours and in the company of various outsiders, entered the office building where he worked. The incursion was for the purpose of taking photographs and developing evidence in a suit pending against the employer. It was admitted that the clerk violated no rule of the agreement. For the latter reason the Third Division, in Award No. 6116, ordered him reinstated. But the Federal Courts upheld the carrier's refusal to comply with the Award, citing the grievant's "gross disloyalty".
 "No man can serve two masters." No man can loyally `serve both Burlington Northern and the law firm which employed Claimant and for whom he worked on many days when he . should have been protecting the service of his first employer.
      Yet while our original award might appear to he based

PLB No. 1207 Award No. 8. Page 8.

 upon a finding of conflict of interest in dual employment alone, nevertheless our denial award was actually based upon an abundance of evidence which convicted Mr. Riddle of violation of the cited rules. In Decision 3310 of 5BA 18 Judge Mabry apologized for the length of his (5 page) opinion. The neutral now deems it appropriate to apologize for the brevity of our original opinion. Let us summarize the record before this Board.
 The record reflects that over a period of 32 months, January 1970 through August 1972, when the normal railroad employee would be zealously seeking 22 starts a month at . least, Mr. Riddle averaged slightly over 11. Much of the time while he was refusing service of his primary employer he was engaged in the disputed work. But his fringe benefits, paid by Carrier, were as though he were working full time.
 We find that Mr. Riddle '.s excessive absence from duty reflected a disloyalty squarely within the purview of Rule 700 and that such violation of such rule was of sufficient gravity to support discharge.
 At all times while he was engaging in his dual employment Mr. Riddle earned more working for the law firm's investigative service than he did working for Carrier. In making his investigative work his principal employment Mr,. Riddle displayed disloyalty to the extent that,such consti-
 PLB No. 1207 Award No. 8 Page 9.

 tuted violation of Rule 700. Such violation of the Consolidated Code of Operating Rules was of sufficient gravity to support the penalty assessed by Carrier.
 We further find from the record that Claimant violated Rule 700 in that he was not only disloyal but dishonest in doing investigative work whiZe under pay and on duty in Carrier's service. Such disloyalty and dishonesty justify the discipline assessed by Carrier.
 The_record reflects further that Claimant engaged in barratry to the detriment of Carrier and in violation of Rule 700 and engaged in dishonesty in violation of such rule .in framing the statements of numerous of his "clients".
 Rule 700 (A) requires an employee to make known to Carrier all information relating to any irregularity, accident or violation of rules.
 . Claimant consistently violated such provisions in withholding information and failing to give factual reports of irregularity and claimed accidents. Such violation was persistent and detrimental to his employer to such an extent as to constitute gross disloyalty to Carrier within the proscription of Rule 700. Such transgressions alone would support discharge.
 Additionally, the record is indisputed that Earl J. Riddle violated Rule 702 (C) in failing to apply for and receive written permission for pursuing another business or
 PLB No, 1207
 Award No, 8. .
 Page 10.

 occupation. We find that Rule 702 (C) (as well as Rule 700
 and Rule 700 (A)) is a reasonable rule·'which must be en
 forced and that because of his flagrant violation of such
 rule Claimant was deserving of the discipline assessed.
 We deem it appropriate to comment on Mr. Riddle's lawyers' arguments before the Federal Courts to the effect, that Carrier's discipline of Riddle, and this Board's sustention of such discharge, constitute an unfair circumscription of the right of Claimant, a vice local chairman, to aid his brothers. The facts in the record wholly fail to support such position. In pursuing the activity which resulted in . his discharge Mr. Riddle was not ministering to his union charges. Instead, he was ranging far away from hi's local, soliciting business from strangers on behalf of his lawyer employers, at the same time neglecting his duty to Carrier. Such argument by counsel constituted a demagogic cheap shot at the General Chairman who ably and diligently presented Mr. Riddle's grievance to this Board.
 / Just cause existed for Mr. Riddle's discharge. His violation of the three rules was clearly shown.

 AWARD: Claim denied.

                      AI . BR WN, airman an

                      Neutral Member


                      ~' ,/j. ~ ~ fir

                      T. C. DeBUTTS, Carrier Mem er


                      .., y. McCOY, rganization Afem er

April 1, 1977