Award No. 1
r case No. 1
PUBLIC LAW BOARD NO. ;:1;311
PARTIES TO DISPUTE: United Transportation Union
vs
Norfolk and Western Roitway Company
STAfTV4fi`:T OF CLAIM: Appnul of Brakeman T. E. Finnerty for reinstatement
with full :;eni')rity uni:a;t._li.r_'d, removal of discip
linr, from the record, full. pay fur all time Lu:_t, rer:ovQry for tha loss
or' all fringe benefits (current gull future), including (.Plc monetary
value thereof in the cane of benefits
<i::em:d ir:'ol)lacc:r.bLe,
and 1?uhl.'.c
written apology to Mr. Finnerty from both the Norfolk and Western R:nii
way Company as an employer arid from Trainnla::!:·?r .J. C:. Smith personally
and a;; a representative o.f
t!TU
Norfolk anU
l,r
r:a-·;:rn Railway Cum(>;ar:y fmr
'iuf&:nation of character and thr: rlrivc?r·r,.r el'K.:t; it has had on hi.:. :;t.,,:rd
ind in the community, his ability to obtain ':!.: arw.:; and ':!mt' oymf'rtt And
the general defamatory nature of th, action.
..
;'rATE24EPd'1' OF
FACTS: The facts in r,hT,
cu;
", r.:L
a. 1.^!cxl',
. r. :tl,
aT·'
uh:_rt
.r.'r.,:i;C:R;Ia
L. ·J. :ir:~tr,
o(.;y.rt:n: :y :11ltlu:rsal .. MnF'.
°'.rt of as on-duty in;ury. The Carrier's
&:;.;n
Agent, Mr.·javr.y.;", 1.
,al
w.xtlr.d upon him, whether ty· ::.lrpoinL.lmnt or n.:!; i:. not um,ireLy cl;)a:·,
u!n:
%as attempting to iJr.^31T6.~'.
il ..'^.t;f.l.t'.?11:11(,.
Thc: Ci;:fnlant at tile tin! was an en,nl r!yuw of the
Carrier, but off duty Im:t:n,rr,e of an injury not
railroad connected, since December
.',, lcJ7t,.
Mr. Finnerty also oc':ur.'.od
I;:.f.
office of Vice General Chairman, Genera.). Cunmrittee of Adjustment,
h':y;islative Representative--10>6; and
had
boon dosignated of record .s
.',:; legal counsel by the G'cm:ral Committee ('fr. pagea 1-19 and 3;).
. ., . Board presumes his position ar, outlined Above was tllu reas·:n:r th
.t
..._ injured employee, L. J. Scott, aI)proacla`d hir,. Finnerty for advic .
Claim Agent Savage had visited the !Tome of the n,jured employee, Brakeman :icon, on February :?3, L977
_. Which time the iny_Ireci
employee
Scott in?'c)rnlt,d him he was belly,; r ^re
w
;:ted by Claimant; and again fn May, 1977,. !,') ask for a repra:st.nl:,a· :::
_ %ter which, according to such request, w:::: furnished him.
This took p1uC:: after
r
l.:, Ln,jurerl Iflplr,yn,: lnd
til:W'.rl tn:
t!:·? General _l'.i>(.'lun
;1bOi;!
l:I ..L(,o;i,ll
n;l
! ha.l
a^,k·^_rl him
acl'ri ca ..
I)
the n!atc':r. 'fil. ,c:rn:,r;zl t;;o;i
t:ou:r f.iT..'.v . ._
, =l,:.i thuL till'
L'yil?r'nnl
'f:,rl.?J"r),
l;I'.v.·i·'1!1
,'t`t)I,t, /'l:!.
L:. :'.n;fa. S'll ,
.. . .u:
.:u·'rty, Lit.. 1r: z" lar'.I
I""!..l:n
.111r1 (~:l~:l·1. ' ·t ;,. :l ~ W
I' '.ll
.n
:'1
1 r
.1!:
r
_ nua'.ndcd U'I'U c:l:l;::a.l.
No 1 - pa--e
2
it is the position of Lllo t)r!,anization than th--~
r·eprr:::entation .letter furnished by the injured
~,;-.ioy~e at tire requ~-'.t of Claim
Agont
~avrz~;.; wn:> for the
purlTO;:·: of
:n:-:1ating the injured employee from furthhr direct visits.
said
-~:scirtation letter which is reproduc-od be low seems to be the sub-
::~ti;e cause of Claimant's di-charge:
LAW OFFICES
t,~ELANEY & PERKINS& FINNERTY
;C~?3 SOUTH BRADDOCK
AVENUE
PITTSBURGH, PA. 15218 · (412) 241-8130
IN REFERENCE TO:
AIRMAIL
Q
FIRST CLASS MAR
O
INTER OFrI[E
Q
ToR
hORF013f & WESTERN RWY. CO.
Claims Department
J. J. Ryland, District Claims Agent
BRF4STER, OHIO
HOW TO USE THIS
lC1TER TO SAVE TIME.
TYW
.Y
vrife
rout real, in 1h, "." Th., ..J
Ih. .h,N mpE
to m and 4..P the Pint
ca,/
Mr Your inlet.
Vav'll re
Am, and -0 11 hqv. an'",
murh Iftwl Thank Va..
7-77
DATE..----
___. ._.Sauo
- 1161 G : ';U4
Dear Sir:
GATE-Nay-5,
1'77
F':.ease be advised that I represent L.J. scot
brakeman - Rook, Pa., IN RE: personal
injur;.Il
and lost wages due to incident occurring at
kc:ok Yard on December" 10
z:.ndly address-any--further ouestions- with
rr.gard to
this-incident to me at the
addrrssj
above,
Very truly
yours,
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
Mr. Timothy E. Finnerty
129
Barnes Street
Pittsburgh, Pennsylvania ).52:'1
Mr. Timothy E. Finnerty:
You are hereby notified
4o
report. to the office of the kosistant Superintendent at Rook, Penn,-,ylvania, at 9:GG A.I:I.,
Friday, June 24,
1977,
for a formal trial to determine the
facts and your responsibility in connection with your unfaith-fulness and disloyalty to the
Norfolk
and Wes-tcrn Railwa;,
Company by representing Brak--:man L.
J.
Scott., an empLoyc, of
this Carrier, as legal counsel in progression of a perco:al
injury claim for reason of' 'per.,k~ilal. injuries and lo:~t w.~ges
due to incident occurring at Pool. Yard on 1)e:cmL~cr 1(), 1');b.'
"If you desire to have a repro. son;;;,tive and/or witnesses at
the formal trial, please: arrango for their presence.
Sincerely,
J.
G. Smith
Trairunaster
Following witnesses arrange to ho present:
Messrs.
R. L.
Musick
' J. J. Ryland
J. R.
Savage
Other witnesses may be called."
Sub-e(luent to inveSti;',.it.I,t)I1, the Carrier wrote
the Claimant as follow.::
p(6 at ~~f
CJ,,e Nu. 1 - t~c:,,e 4
"Brewster, Ohio, July 15, 1977
Mr. Timothy E. Finnerty
329 Barnes Street
Pittsburgh, Fennsylvani a 15:'..2.1
Dear Sir:
Reference is made to the normal triaL held in the Office of
the Assistant Superintendent at Rook, Pennsylvania at 9:00
A.M., July 6, 1977,
to determine tho facts and your responsibility in connection with your unfaithfulness and disloyalty
to the Norfolk and Western Railway Company by representing
Blakeman L. J. Scott, an employee of this Carrier, as legal
counsel in progression of a personal. injury claim for rca:i"n
of 'personal injuries and Lost war;on due to incident occurring at Rook Yard on Ducomber 10, 1
0
76. '
Fur your respunoihility
a;
dvvdlorod
in the formal tr i"L,
you are hereby assevood discipline ..., fuiLows:
' DIVI SSAL'
Please arrange to return all company property, in<: Lud i n;
switch key, 1an_:orn, &o;: of Rule:., rte.
Your:;
i.:'!tly,
J. U. Smith
. Trainmanter
_ITNDINC;: The Board ha:, searched the entire record of th i
case with great care. The Carrier has the bur,.n
f proof to support its formal charge "to determine the facts and y. :r
._~ponsibility in connection with your unfaithfulness and disloyalt; to
on" Norfolk and Western, . . .."
Mlle Carrier states 7.R Lh.:i submission, page
r:
"In Kew of C1limanL'n own tO:timony
glvca
at
n trial, it
is apparont Claimant reprn:~nrwd Brakeman
WccLt
an le.
il
t
o"Asul
in the progrwsjt.n of paracnal injury
: UL,
otc."
Pea
P-(SH
Case No. 1 - page 5
However, commencing .at Page 3$ of the transcript,
testimony of Claimant, i:; ao follows:
Q. Have you ever talked to Mr. Savage or any other
agent for the Norfolk and Western regarding the
claim of Mr. Scott? ,
A. I have had no personil contact other than the
lottor that I sent with :-i.th^r Mr. Savago or
Mr. Hyland.
Q. liavc you filed :ct:i.t o;l b,A1aLf of Mr. Scott, in
the Court of LhL~ Unit,,!(! ..'t.,xt.e:`.'
A. No I have not.
As a union representative, do you have the
right; to represent Mr. 2cott, whether or not
you are an attorney?
A. It i.^, my understanctying
oC
the law that it is my
right to so represent Mr. Scott, both as an
officer of the court art as an officer of this
union.
Q. And in representing Mr. Scott, did you have any
intentions of being disloyal or unfaithful to the
Norfolk and Western Railway Company?
A. None whatsoever. The -nly alternative I had i:
representing Mr. Scott, was to say that, ono, a
he had contacted me rolahLvo to the visits of :e
railway claim agents
and
knowing that once an
attorney
had
been att.ai neat, they would no long..
talk to him, it being Mr. Scott's wish that he :eve
no further contact
with the
railway claim agen; .-, as
their
visits,
had been unannounced and upset h:. .
Hi: contacted me and ashod me if I would get in ,ouch
with the.-., which I did with letter, the one in
·oduced
as evidence hero.
This
cvidence
does not sQom to have been rebut d
in th:
re·cord.
There
i s
L'urther evidence: i n t
_ - rd That
tt:C
Claim
heli'IrtmL:tli· has novor contacted Mr'. 1''i nlwrty :i a
:·e:-:utat_vc: for Mr. Scott on his pcrson:Ll injury
claim. 'L'r., p::, 1,.0.
,. ... _.; evidence that, lil.` CJeeimint
was
n,w-r
rr"O&Icd ho w.uiA nev .e
.,.,·?tt.~d t", handle'
x·:IL~r·'I~
e:l.;el:rl:' 'as
an Itl.ornoy.
QLr3
a 18`A
(%asu No.
I - page
6
There .: no ovidertco Claiv:anc ever enterod into an
attorney and cl icnt cintract or fat; arranf;emant
r that there was an appearance in court. ,:r even conferences. The
Claimant bases his ri,,:At to coun3el urahernn Scott.,
which
i : all the
record shows he actually did do, acnordl;:
Lo
his union job :anti re..ponribi.lity. He ralicd for his juotiiic oian upon UTU v:, VirZinia,
-77 US 1 which in a reazonably similar ea.aQ, the Supreme Court said:
"It cannot he aerit
u·wLy
doubted that the
First Amendment's guarantees of :'roe speech, petition
and assembly give railroad workor& the right to gather
together for the lawful purpoon ,%f helping arid advisin
()n2
another in asserting the rrKnts Congress gale them
in the Safety Appliance Act and On Federal Foployers'
Liability
act,
statutory right.,, wll
ice
would be rain and
futile if the workers could not, talk together freely as
. to the best cr>uroo to follow. The right of members t·:
consult with each other in a frot-rnal orpanizataon
necessarily includos tht. right
t,tr
nelect a epokesmnn
from their ntrmhtr who could lr· oxipoctod to give tht:
wisest counoei. That. i.: tea rolq played by the mem6er:;
who carry out the P,·al .lid frtrpriw. And tilt.: KOK of
the worker: per^onally or thooo,;:t a special dopartmont
of their Brutuorhood to advice concerning the need Wr
legal assistance -- anti, most inp,rtantly, what lawyer
a member cuula conVidontiy raly
. n --
15 an inseparable
part of this, .^t n:ll.tt~lt.i:,n:.il.ly ru trantoud right to assist.
surd advise ea,:a ut.h.,r."
This s·~t~m,; to cover :tlronrt any action:; thra tl,
1'000rd
::bows lrnd
bt:on orr',ag, d ill by lair. Front ty
11 t<.,
the time of the i Rvos', L ;uWi "n.
TIwc-, i s
no
OR)wl
rig that t,l n>
: r:: l,t:cn arty dotrirnent t.ta the C;irrier.
Tilt: Board io trot conv;nt:vd that thin Carrier
en:;tailled .i l,^ border:
·1.
r61·uo1' that Mr. Finnor y
repre:;cllteti Mr. Scott i n a legal action again.
1;
the Carri or.
'A:lARD: Clsim auctOnud in W
h
Claimant Finnarty is
reinstated to his pr'uvious position with full
seniority unimpaired and removal of.' said discipline from his reco.d,
together with pay for time lost from Au,nnnt 1, 1977, which the
r acnrd shows was the date he was able to r-turn to work from .sick
1 .._,vr,. The Board ii r:r rr,l allt.llttri ty to t·tl i rrl..t apolor-i t,;;, :trill ccrt . i 11
hhnr
exuranuou ; mctLWr.' rrwirLi,rnt"l in I,It·' ,Q:rirn.
pLaiBLl
Case No. 1 - page
Carrier
is
ordered to make this award effective
within thirty days.
~·v~ret
&~z
J-4
7i-~, Cliurman and Neutral
w
I
. . the employees ~~
Fir
t
4-F
C 1 , :eland, Ohio