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Jorgensen v. Pennsylvania Railroad Co.

Decided: December 5, 1955.

CARL JORGENSEN, PLAINTIFF-RESPONDENT,
v.
THE PENNSYLVANIA RAILROAD COMPANY, A CORPORATION, DEFENDANT-APPELLANT, AND JOHN E. ULICH, DEFENDANT



Clapp, Jayne and Francis. The opinion of the court was delivered by Francis, J.A.D.

Francis

[38 NJSuper Page 323] Plaintiff was the recipient of various compensatory and punitive damage verdicts against his former employer, The Pennsylvania Railroad Company. All of them are assailed as invalid for reasons to be discussed herein.

The factual background which gave rise to the litigation is not complicated. The problems stem largely from the conflicting views of the parties as to the legal principles which are applicable to the facts and as to the effect of these principles when applied to the facts.

Prior to June 16, 1953 Jorgensen had been in the employ of defendant railroad as a dining car steward for seven and one-half years. At the time of the trial he was 58 years of age, married and had two sons, one 23 and the other 17 years of age. As steward he was in charge of the dining car, including the crew assigned to it, cooks, waiters and any other help, the food and equipment.

Members of the dining car crew and the steward were permitted to take their regular meals without charge when they were on duty. There was no fixed time for their meals; apparently they ate when doing so would not interfere with the service to passenger patrons. However, it was against the company rules to take food from the train in a personal bag or brief case for consumption at home or elsewhere.

On June 13 Jorgensen went on duty at Pittsburgh. From there the train went to Harrisburg. It was scheduled to move on to Philadelphia and the dining car crew were to alight at Harrisburg if the meal to be served in the course of the approach to that city was completed in time to permit them to do so. This eventuality occurred and they left the train; the car then deadheaded into Philadelphia.

The dining car contained a small bar and refrigerator at one end, the end used for exit purposes; at the other was the kitchen in which there was a larger refrigerator. The galley was well stocked with ham, bacon, chicken, fish and roast beef.

On the way into Harrisburg Jorgensen took a small butt end of a ham from the kitchen refrigerator, intending to make himself a sandwich. This remnant weighed a pound or a pound and a half; there was not enough meat on it to obtain a single slice of the size which would be served normally to a patron. It would make about three sandwiches. And it was the kind of leftover which ordinarily

was chopped up and used by the crew for their ham and eggs dish. No one suggests that any misconduct would be involved if the steward ate this much ham himself.

The piece of ham was put in the small bar refrigerator until Jorgensen could find time to make his sandwich. No such opportunity presented itself on the way into Harrisburg, but expecting the car to lay over, he intended to do so there. However, as indicated, the entire train moved on to Philadelphia. A day or so later he again took over the car in Washington, D.C., and on June 16 was in charge of it on the run into New York.

On arrival at the Pennsylvania Station in New York, his personal belongings, shirts, socks, underwear, about 250 meal checks, some pencils, waiters' badges, rubber bands and about $25 in rolls of change, were in his brief case. The company property was to be turned in at the proper office at the station. There is no charge that anything was wrong in this connection. It was his duty to see that the kitchen was locked up. Apparently, from his testimony, he remembered the piece of ham which had been left in the bar refrigerator. Intending to put it in the kitchen refrigerator, he picked it up in a napkin and carrying it in his hand started to walk toward the kitchen at the other end of the car. This was away from the exit door. In doing so, he went past three members of the dining car crew. These men, two of them of almost 30 years' service each, testified in his behalf at the trial and provided substantial corroboration for his version of this part of the incident.

As Jorgensen was moving toward the kitchen, John E. Ulich, defendant's supervisor of service, and two railroad police officers, L. B. Olcott and A. E. Canino, came into the car. Ulich and one officer entered at the exit door and the other officer appeared at the kitchen end. Ulich announced to the crew members, who were preparing to leave, that a spot inspection was going to be made and that all of them were to open their bags.

At the order for inspection Jorgensen said he stopped and placed his bag and the piece of ham in the napkin on one

of the tables. Ulich walked up to him, picked up the ham in the napkin, and said to one of the officers: "Hold that man." Ulich retained the ham, making no response to the question: "What are you trying to do to me?" He talked with the officers who then told Jorgensen to follow them.

They took him to the railroad police department office located in the station and detained him there for two or two and one-half hours. During this period the union representative came in, apparently to find out what the difficulty was and to look after Jorgensen's interests. He was denied permission to do so and was ordered to leave. Jorgensen wished to telephone his wife because she was waiting for him but this was not allowed.

The police officers (four or five of them being present) asked if he wished to make a statement, but when he described the ham incident the officer who had prepared to take it walked off saying: "Well, that's a good story if you can believe it."

One of the officers prepared a two-line resignation, effective immediately, and asked him to sign it. He was told if he did not affix his signature he would be taken to jail. He said he was nervous and apprehensive, never having been in jail in his life, and never having been charged by the railroad with stealing anything, although he had handled dining car receipts and a "bank" of $200 (used for making change) for almost eight years. Consequently he signed in order to obtain his release and he told the officers he would repudiate it as soon as he got outside. When he was allowed to leave after turning in his bank, his receipts from the trip just completed, another $200, and his railroad pass, he went to see Mr. Geren, the Superintendent of Dining Car Service, and explained the situation to him.

Thereafter he informed Mr. A. J. Ellis, local chairman of his union, about the matter and then engaged an attorney to represent him. On June 18 Ellis wrote to the company, asking that Jorgensen be given a trial as required by the union contract. On June 22 the attorney made the same request.

Jorgensen was a member of Lodge No. 162 of the Brotherhood of Railroad Trainmen, the accredited statutory representative of the employees for collective bargaining purposes under the Railway Labor Act, 44 Stat. 577 (1926), 45 U.S.C.A. §§ 151-188 (1954). A contract regulating wages, hours and working conditions of the employees, including the plaintiff, was in force between the brotherhood and the railroad at the time in question.

Among other things, the contract provides:

"Rule No. 6 -- Discipline.

"6-A-1. Employes will not be suspended nor dismissed from the service without a fair and impartial trial; neither will they be held off duty for minor offenses pending investigation or decision. Witnesses will be examined separately, but in event of conflicting testimony, those whose evidence conflicts will be examined together. Employes will be notified in writing ten days prior to date suspension takes effect.

6-A-3. An employe required to attend investigation may be accompanied by an employe of his own selection, who will be permitted to question witnesses so far as the interests of the employe is concerned.

Rule No. 7 -- Appeals.

7-A-1. An employe who considers that an injustice has been done him, and who has appealed his case in writing to his Superintendent within ten days, will be given a hearing at which he may be accompanied by an employe from the district in which he is employed to assist him in presenting his case. After his appeal has been acted upon by the Superintendent, he may, if he so desires, be represented before the Superintendent [of the Dining Car Service] and General Superintendent [later changed to Manager, Dining Car Service] by the Committee representing employees covered by these regulations.

7-B-1. If the charge against the employe is not sustained, it will be stricken from the record. * * *."

This agreement and the stipulations with respect to such grievances were made pursuant to section two of the Railway Labor Act, 44 Stat. 577 (1926), 45 U.S.C.A. § 152 (1954). Section three thereof, 44 Stat. 578 (1926), 45 U.S.C.A. § 153, says that:

"(i) The disputes between an employee * * * and a carrier * * * growing out of grievances * * *, shall be handled in

the usual manner up to and including the chief operating officer of the carrier designated to handle such disputes; but, failing to reach an adjustment in this manner, the disputes may be referred by petition of the parties or by either party to the appropriate division of the Adjustment Board [National Railway Adjustment Board] with a full statement of the facts and all supporting data bearing upon the disputes."

As the result of the letters referred to, an investigation hearing, presumably under Rule 6-A-1, was held on June 29, 1953. Jorgensen, his attorney and the union local chairman attended. He was informed by John J. Reilly (whose official capacity was Budget Manager, and who was in charge of the proceeding) of the charge reported by Ulich, and advised that the investigation was being held to permit him to make an explanation. After some discussion, a short statement of denial was made. At its conclusion by agreement the trial date of July 3 was fixed and he was advised that in the meantime he would not be allowed to return to work.

On June 29 the company sent a registered letter to Jorgensen at home, and to his attorney, confirming the trial date and setting out specifically the accusation which was to be heard. The exact contents of this letter will be set forth at a more appropriate point.

It may be noted with respect to this letter, as well as the one of July 6 hereafter mentioned, that no reference was made to the resignation signed on June 16 and no effort seems to have been made by the company to place reliance upon it at the hearings.

On July 3 and 8 the trial was conducted. The presiding officer was again Reilly; the same representatives of the accused were present, as well as the various witnesses (although all of them were not on hand at the same time) and an assistant personnel manager appeared; the testimony was taken stenographically.

At the opening of the hearing, Reilly read into the record the letter of June 29 containing the charge. Jorgensen conceded having received it and said that he was ready to proceed. When the matter was not concluded on July 3, a

letter dated July 6 was sent formally notifying him of the adjourned date and again setting forth the charge for which he was being tried. On July 8 this letter was read into the record and Jorgensen acknowledged that he had received it.

At the company trial Ulich and the two police officers, Olcott and Canino, gave their version of the events of June 16. In defense, Jorgensen recounted the facts detailed above and produced three fellow employees, Coalbrook, the second cook, Washington, the chef (both of whom were witnesses at the Law Division trial) and Dudley Blackman, a waiter, all of whom provided support for the statement that Jorgensen was carrying the ham in a napkin in his hand and walking toward the kitchen when the inspection took place.

On July 22, the following formal notice of dismissal was sent to the accused:

"THE PENNSYLVANIA RAILROAD

NOTICE OF DISCIPLINE FOR OFFENSE OCCURRING

ON DINING CAR DEPARTMENT

Long Island City, N.Y., July 22, 1953

Name -- Carl Jorgensen. Occupation -- Steward.

Home Division -- New York Region.

Discipline -- Dismissal from the service of the Pennsylvania Railroad Company.

Date of Occurrence -- June 16, 1953.

Place -- New York.

Outline of Offense: --

'On June 16, 1953, when your personal bag was inspected just prior to your detraining from dining car 7943, train No. 112 at Pennsylvania Station, New York, N.Y., it was found to contain a quantity of ham (company property) wrapped in a company napkin.'

E. H. Fausnaugh,

Supervisor Operations."

Whether a copy of this was mailed or delivered to any other person does not appear.

On July 27 the union local chairman Ellis appealed to J. R. Geren, Superintendent of Dining Car Service, who shortly thereafter held a conference with him and Jorgensen. On August 7 Geren wrote to them referring to their visit and ...


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