YARDMASTER DEPARTMENT AWARDS

SPECIFIC CHARGES (2)
AWARD # REFEREE RAILROAD
First Division Award 14190 Jackson Duluth Missabe & Iron Range
First Division Award 14491 Stone Baltimore and Ohio
First Division Award 19394 Coburn Missouri Pacific
Second Division Award 6067 McPherson Norfolk and Western
Second Division Award 6500 McGovern Long Island
Second Division Award 6931 Weston Chicago & North Western
Second Division Award 12504 Fibish Union Pacific
Third Division Award 3707 Miller Atlantic Coast Line
Third Division Award 4607 Whiting Missouri-Kansas-Texas
Third Division Award 18430 Ritter Chicago & North Western
Third Division Award 18467 O'Brien Boston and Maine
Third Division Award 29735 Simmelkjaer CSX (L&N)
Fourth Division Award 2218 Coburn Erie Lackawanna
Fourth Division Award 2378 Dorsey Norfolk and Western
Fourth Division Award 2535 Seidenberg Consolidated Rail Corp. (Lehigh Valley)
Fourth Division Award 3489 Sickles Baltimore & Ohio
Fourth Division Award 3508 Lieberman Houston Belt & Terminal
Fourth Division Award 3975 Marx Consolidated Rail Corp.
Fourth Division Award 4324 Miller Baltimore & Ohio
Public Law Board 2145 - Award 1 Van Wart Baltimore & Ohio
Public Law Board 2763 - Award 3 Van Wart Baltimore & Ohio

Fourth Division Award No. 2378 (Dorsey)

"A 'precise charge' must satisfy - Who? - What? - Where? - When? - Why?

"Rule 13 is a particular rule. It prevails over any general rule. Carrier is contractually restrained from disciplining `Yardmasters. . . without proper hearing as provided for in' paragraph (b). The Rule must be strictly construed. Failure of Carrier to give an employe a written notice that clearly specifies the precise charge against him makes a discipline proceeding against him void ad inito; ergo, Carrier, not having complied with an indispensable requirement of the Rule, was contractually enjoined from disciplining Claimant.

"Carrier has cited the following Awards as supporting its position: First Division Award Nos. 19699, 20081, 18803, 17609, 12157, 18878, 19119, 20052; and Fourth Division Award Nos. 2112, 1140 and 1880. Insofar as those Awards expressly hold or imply that under a factual situation, such as we are confronted with in the instant case, that a carrier can administer discipline predicated upon a hearing not held in compliance with a specific discipline provision, as herein, they are - using an idiomatic expression of the industry - `palpably wrong'. It can be said in the instant case, by analogy, that the Carrier had no jurisdiction to administer discipline in this case because it failed to comply with the plenary discipline procedure prescribed in the agreement.

"We find and hold: (1) the notice of September 12, and the hearing held on September 15, 1967, were not in compliance with Rule 13-DISCIPLINE; (2) absent compliance with Rule 13 Carrier was contractually enjoined from disciplining Claimant; (3) the agreement compels us to sustain the claim." (Emphasis theirs)

Fourth Division Award No. 2535 (Seidenberg)

"The Organization interposes several procedural objections to the Investigation Hearing. It stresses that Article 20 was violated in that no precise charges were filed against the claimant. Item (1) of the July 15 charges does not specify where and when the claimant violated Rule "G". Secondly, Item (2) of the charges cites the claimant for dereliction of duty without specifying in any detail in which way or manner the claimant properly failed to perform his duty.

* * * 

"The Carrier is not required to set forth its evidence in the Notice of Charges, but it is required to make clear, unequivocal and definitive statement of the offense or offenses which the claimant is alleged to have committed, and note them in such a way that the claimant may be able to know as to what charges will confront him and also enable him to prepare whatever defense or defenses, if any, he may wish to offer at the Investigation. The July 15, 1968 Notice failed to do this and cannot be characterized in any other way than being vague and imprecise. The Notice here in issue is fatally defective because it is violative of Rule 20(b) and under these circumstances the claimant did not have the fair and impartial trial which he is contractually guaranteed by Rule 20(a). Under these circumstances, the Board has no recourse but to set aside the discipline assessed at this procedurally defective Investigation Hearing held on July 25, 1968." (Emphasis added)

Fourth Division Award No. 2218 (Coburn)

"As a general rule a notice to an employe requiring his presence at an investigation held under the discipline rules of the basic agreement is deemed to be adequate if it is timely served and is so worded as fully to inform the recipient of the nature of the matter under investigation. The test of the adequacy of such notice is whether or not in terms of time and wording, it affords the recipient full opportunity to prepare his defenses.

"That general rule does not, however, prevail where, as here, the disciplinary rules of the agreement require the specification of the charge or charges against a yardmaster called into an investigation. This requirement is a contractual right and, therefore, must be strictly construed in order to prevent the gradual erosion and, indeed, eventual emasculation of an employe's right to due process under the disciplinary rules.

"In view of the foregoing, the Board finds that Carrier's failure to specify the charge or charges against Claimants in its notices of September 11, 1965, was a violation of the agreements in evidence. Accordingly, the claim will be sustained." (Emphasis added)

Third Division Award No. 18467 (O'Brien)

"The sole question before us is whether the Carrier violated Article 14 of the applicable Agreement in disciplining Claimant. Article 14 states, in pertinent part, `at a reasonable time prior to the hearing, the employe will be apprised in writing of the precise charge against him.'" (Emphasis added)

Third Division Award No. 3707 (Miller)

". . . Even more specifically, the question is whether Jones was `apprised of the precise charge against him' `at a reasonable time prior to the hearing.' (Emphasis added)

* * * 

"`Conduct unbecoming' this or that is one of the most loose and general charges that can ever be made anywhere. It can be - and is - used to cover a multitude of sins or a single peccadillo. It is poles apart from a `precise charge.'

"We, therefore, will find that the Carrier violated the Agreement and sustain the claim."

Third Division Award No. 4607 (Whiting)

"We think that the requirement of notification of the precise charge against an employe requires an exact specification of the action or non-action which is alleged to constitute a dereliction of duty. A charge of violation of the general rules specifying employes' duties in the performance of their work is not a precise charge.

"Since an employe is, under the rule, entitled to notice of the precise charge against him prior to the hearing, such notice is a condition precedent and he is not obligated to attend or proceed with the hearing until such condition has been met." (Emphasis added)

Third Division Award No. 18430 (Ritter)

". . . Therefore, this Board finds that as far as the merits are concerned, the discipline assessed was entirely justified. However, Article 8(b) requires Carrier to notify in writing any train dispatcher charged with an irregularity which might result in such train dispatcher being disciplined; said Article 8 requires that he be notified of the precise charge. In this instance, Claimant was notified in writing to appear for formal investigation on the charge: `Your responsibility in connection with failure to comply with Train Order No. 105 * * *' Such language does not constitute a `precise' charge as required by Article 8(b) of the Agreement . . ." (Emphasis theirs)

Second Division Award No. 6500 (McGovern)

"After reviewing the transcript of the hearing as well as the exchange of correspondence on the property, we find that the charge against the complainant was much too broad in order to enable him to properly prepare his defense. It is quite evident from the record that he was not prepared to answer in detail every incident mentioned by the hearing officer over a 12 year span. It is true indeed that the charge as originally presented, in order to over-come the objection of it being vague and indefinite, need not attain the specificity of a criminal indictment, but it should be sufficiently precise and definite so that the accused may respond with his version of the facts involved to constitute a reasonable adequate defense from his point of view. He should not appear at the hearing and be surprised at the detailed charges leveled against him. Elemental rules of fair play militate against broad general, indefinite and imprecise charges. We will sustain the claim." (Emphasis added)

Second Division Award No. 6931 (Weston)

"If Carrier considered Claimants' actions insubordinate or undermining, specific charges could have been issued with respect to those points and evidence submitted in their support. However, that was not done in this case and Carrier instead relied on allegations that Claimants had not performed an adequate amount of work. These allegations are not supported by the record and Carrier has not sustained its burden of proof in that respect." (Emphasis added)

Second Division Award No. 6067 (McPherson)

"Careful study of the transcript shows that the subsequent finding of the Carrier that the Claimant was guilty as charged was completely unsupported by the testimony, On the contrary, the record shows conclusively that the Claimant was not guilty of the charge placed against him. Since Rule 33 of the Agreement requires that the employe be apprised of `the precise charge', he cannot be charged with one thing and found guilty of another. `Accusation' and `threat' are by no means synonymous. The discharge, therefore, cannot be sustained." (Emphasis added)

First Division Award No. 14190 (Jackson)

". . . He was found guilty, not of the specific charge, but of the much more general one of `not handling your job of firing in the proper manner'. Had the latter been the charge, Claimant should have been confronted with it prior to the investigation. The evidence adduced at the investigation covered matters relating to Claimant's `job of firing' in addition to those matters referred to in the charge. The finding that Claimant did not handle his `job of firing in the proper manner' could have been based on evidence having nothing to do with the specific charge." (Emphasis added)

First Division Award No. 14491 (Stone)

"Claimant was charged vaguely with violating Rule 104, which is entitled `Handling Switches', and includes many different requirements, while the agreement provides that he be apprised of the precise charge against him. . . . Since Claimant was not properly charged nor directly involved in the sideswiping, he should be paid for time lost." (Emphasis added)

First Division Award No. 19394 (Coburn)

"We agree with petitioner that a carrier may not, with impunity, disregard the procedural rights of an accused under the agreement and that any substantial impairment of these rights will ordinarily vitiate the discipline imposed. (Awards 2370, 5197, 19043 and many others.)"

Fourth Division Award No. 3508 (Lieberman)

"Petitioner's position with respect to the specificity of the charge is well taken. First it is well established that the failure of the Carrier to give the charged employe a written notice that clearly specifies the precise charge against him, renders the disciplinary proceeding against such employe void." (Emphasis ours)

Fourth Division Award No. 3975 (Marx)

"The Organization argues that the notice of hearing to the Claimant fails to provide the `specific charges' as required by the rule, emphasizing the use of the word `specific'. The organization refers to numerous awards in which claims have been sustained because the charges involved did not meet the definition of being `precise', as required by various disciplinary rules applicable to these disputes. `Specific' and `precise' are sufficiently synonomous (sic) to make such awards applicable here.

"Related to the Brakeman's injury, in one way or another, were the Claimant Yardmaster, the Brakeman's fellow crew members, and possibly other supervisory personnel. If the investigation was to be concerned with the `personal injury' of the Brakeman, and nothing more, it is difficult to understand why the Yardmaster was selected as the sole employe to be investigated. Alternatively, if it was an alleged action (or failure to act) involving the Yardmaster, it is entirely reasonable that the Carrier should have been `specific' in its charge. The hearing, in fact, did follow this latter course, but this would have hardly been known in advance by the Claimant or the Organization.

"A dispute under review concurrently by the Board illustrates the type of charge which might have been sufficiently specific. In Award Number 3974 a Yardmaster was subject to an investigation under the charge of allowing: `Yard Assignment GA-22 to enter Class Track #13 for the purpose of coupling and pulling same on January 22, 1981, without the track being properly blocked.' The contrast with the charge herein is obvious."

Second Division Award No. 12504 (Fibish)

"The Board finds that the Carrier's July 20, 1990, Notice is inconsistent with the requirements of Rule 32(b) that the charges against an employee must be precise. Charging an employee with excessive absenteeism without specifying the dates of the absences is akin to charging an employee with misconduct without specifying the nature of the misconduct. The effect of both is to deny the employee Agreement due process. The employee and his representative would not know, for example, which witnesses or what documentary evidence to seek and bring to the hearing in order to challenge the accuracy of the dates of alleged absence, nor would they be able to determine whether it could reasonably be argues that the absenteeism at issue was not `excessive' (as one might if, e.g., only a couple of dates of absence were specified), or to determine (or at least investigate, contend, and provide supporting evidence) whether the employee is being subject to disparate treatment because other employees with even poorer attendance records have received no or lesser discipline.

"It is true that the Carrier's supervisor had met with the Claimant in September 1989, and again in a formal conference on December 13, 1989, about his absenteeism, and also served fair warning by its December 13, 1989, letter to the Claimant that the next step would be a formal Investigation. However, that does not relieve the Carrier of the responsibility of citing particular dates in its letter of Notice to the Claimant, especially since that letter was not served until July 20, 1990.

"For this procedural deficiency, the Board sets the Carrier's discipline aside. The Claimant shall be made whole under the terms of the Agreement for the 30-day period he was removed from service. However, interest will not be allowed, as there is no Agreement provision for the payment of interest. See Second Division Awards 11479, 11767, and 12200."

Third Division Award No. 29735 (Simmelkjaer)

"By letter dated December 18, 1990, Carrier's Division Engineer directed Claimant to report for a formal Investigation to determine his responsibility, if any,

'. . .in connection with your personal injury at Milepost Q-169.2, Chicago Division, Monon Subdivision, Bainbridge, Indiana, at or about 1815 Hrs. CSX Standard Time, on November 26, 1990.'

"Following the December 27, 1990 Investigation and by letter dated January 23, 1991, the Division Engineer assessed Claimant a five day overhead suspension 'in that you failed to notify your supervisor of your personal injury prior to leaving company property.'

"The record reveals that the Carrier intended to investigate only the Claimant's responsibility in relation to the personal injury and not his alleged failure to report said injury prior to leaving the property. In this connection, Second Division Award 3808 and Third Division Award 20686 are relevant as follows:

AWARD 3808

'. . .An employe may not be tried on one charge and convicted of another.'

AWARD 20686

'There can be no question but that the object of the investigation was to specifically determine who was responsible for the accident in order that those responsible might be properly disciplined. The investigation brought out that the Claimants had violated Rule 25 in a matter apart from the accident under investigation.

'Did the notice given contain language sufficiently broad to include the violation for which the Claimants were disciplined? We think not.'

* * *

"Claim sustained."

Fourth Division Award No. 3489 (Sickles) 

"OPINION OF BOARD: On September 30, 1975, Claimant was notified - in accordance with the rules of the Wage Agreement - to report for a hearing `...on the following matter:

"`You are charged with being absent during your tour of duty on September 29, 1975.'

"Subsequent to investigation, Claimant was notified that he was at fault for being `...absent during your tour of duty and observed as a person who was under the influence of alcohol or drugs, September 29, 1975...' (underscoring supplied) Claimant was dismissed from service.

"The record is rather extensive in this case, and both parties have submitted lengthy briefs, citing numerous Awards concerning a variety of issues. But, in the final analysis, we return to the issue of variance.

"Whether or not the issue of `precise charge' is properly before us, nonetheless (sic), when Article 7(a) of the Agreement recites that a hearing will be held, it must be presumed that said hearing is in contemplation of a charge of some asserted dereliction.

"We are not here concerned with a question of lesser included offenses - or notice of one issue arguably placing an employee on notice of possible other allegations. Rule G and absence from duty provisions may, on occasions, overlap, but they are separate considerations and each contain their own essential elements.

"Our efforts to dismiss the Rule G conclusion from the case and to focus solely upon the finding of absence from duty has been non-productive. Thus, we have no recourse but to sustain the entire claim."

Fourth Division Award No. 4324 (Miller)

"Yardmaster W. L. McCormick was charged with failure to comply with special instructions issued on December 6, 1982. The charge does not include the Carrier's subsequent contention that Mr. McCormick also violated Operating Rules B, 1401 and 1406. It is not sufficient to argue that the subsequent contentions are contained within or follow from the original charge. Mr. McCormick must understand the full scope of the charge in order to prepare a defense, and that understanding should result from a simple reading of the charge. The original charge in this matter makes no mention of the Operating Rules, therefore it is not proper for the Carrier to allege misconduct pertaining to them."

Public Law Board No. 2145, Award No. 1 (VanWart)

"The Board finds that here the notice of investigation given Claimant did not contain the `precise charge' as required by Article 22 and, further, that copy of said notice of investigation was not given to the Regional General Chairman.

"Carrier, prior to October 11, 1977, had complete knowledge as to what role Claimant Yardmaster had played in connection with the delay to Train Manhattan on October 4, 1977. The factual situation here is distinguishable from that in Fourth Division Award 1140 cited by Carrier to support the propriety of its notice. Consequently, the notice of investigation given Claimant is deemed to lack the necessary specificity mandated by Article 22(a) 'precise charge' requirement. The Fourth Division, in its Award 2378 (John H. Dorsey), in part, said:

"`A precise charge must satisfy - who? what? - where? - when? - why?'

"Doctor Jacob Seidenberg points out, in Fourth Division Award 2535, that:

"`The Carrier is not required to set forth its evidence in the Notice of Charges, but it is required to make clear, unequivocal and definitive statement of the offense or offenses which the claimant is alleged to have committed, and note them in such a way that the claimant may be able to know as to what charges will confront him and also enable him to prepare whatever defense, or defenses, if any, he may wish to offer at the investigation.'"

Public Law Board No. 2763, Award No. 3, (VanWart)

"Did Claimant receive a `precise charge'? We think not. A fair reading of precise charge permits the conclusion that it was not precise. Although he may have been aware of the derailment at 12:15PM, the charge was not such as to permit him an idea as to what he was to defend against. He was not given the who, what, when, where and why of the situation. As pointed out in Fourth Division Award 3489 (Sickles) between these parties:

"`...Whether or not the issue of "precise charge" is properly before us, nonetheless, when Article 7(a) of the Agreement recites that a hearing will be held, it must be presumed that said hearing, is in contemplation of a charge of some asserted dereliction.'"


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Last modified: April 29, 2005