Fourth Division Award No. 4666 (Zusman) 

"In the instant case the Trainmaster was personally involved in prejudging the Claimant's actions, in such a manner as to remove her from service. The probative evidence indicates that the Trainmaster dictated the charges against the Claimant which were then signed by another Carrier official. One charge involved the following of the Trainmaster's instructions. The Claimant and the Trainmaster gave differing versions to which conflicting testimony required a credibility determination. Not only was the Trainmaster the primary witness, but he also issued the assessed discipline. Nowhere does the Carrier deny that the Trainmaster was involved in the decision with the Hearing Officer, Mr. Benson. Such action indicates a process whereby the Trainmaster had a problem with the Claimant, accused and removed her from service, dictated the charges against her, was the primary witness disagreeing with her version of the facts and then signed the discipline against her in which at the least, prior to signing he `concurred' with the decision on the truth of his own testimony.

"This Board cannot find precedent to support a finding of guilt in these circumstances. The multiple roles of the Trainmaster substantially influenced the results, prejudicing the Claimant's rights. We also note other procedural inadequacies. Under the full weight of this record, we are forced to follow a long-standing record of Awards on this property (Public Law Board 2486, Award No. 2) and other properties (Public Law Board 2719, Award No. 14; First Division Award 10616; Third Division Awards 21040, 20471 and Fourth Division Awards 2167, 3382) in sustaining the Claim on procedural grounds to the extent provided for in Article 22(d) of the parties' Agreement.

"A W A R D

"Claim sustained in accordance with the Findings."

Fourth Division Award No. 3584 (O'Brien)

"A thorough review of the record persuades this Board that the hearing officer did not meet the due process requirements necessary for the conduct of a fair and impartial investigation. In the instant claim, the Division Superintendent, Mr. Cross, removed the Claimant from service when the incident in dispute occurred, as well as presiding as hearing officer at the Claimant's investigation. Following the investigation, the same Division Superintendent upheld his own previous decision when, as a result of the investigation, he reaffirmed his position with respect to Claimant's disqualification.

. . . It is our opinion, from an analysis of all the evidence before us, that the hearing officer had prejudged the Claimant's guilt and that a fair and impartial hearing was not afforded Claimant. The First Division in Award No. 21046 decided a similar issue as follows:

"`At this late date there is little excuse for the managerial personnel of a Carrier to ignore the principle that in a discipline case Carrier is essentially, and must, conduct itself like, a trial court. Among several things this means that the Carrier Official who conducts an investigation of a charge made by a Carrier against an employe (1) should not normally have been involved in the occurrences leading up to the leveling of the charge and 92) should comport himself at the investigation, in his questioning of all witnesses (managerial as well as employe), in a truly objective and aloof manner, just as would an outside judge.'

"In Second Division Award No. 7119, this issue was addressed as follows:

"`. . . He activated the investigation, preferred the charge, held the hearing, reviewed the record, assessed the discipline and denied the appeal. In so doing he fulfilled roles of investigator, prosecutor, trial judge and appellate judge. The disinterested development of evidence, the unbiased, review thereof, and the objective assessment of appropriate penalty, inherent in concepts of fair and impartial discipline cannot be accomplished with such egregious overlapping of functions.'

". . . We shall thus sustain the claim based thereon without addressing the merits of the claim. See Awards of the Second Division, No. 6158, No. 7119, and Fourth Division Awards No. 1951, No. 3065."

Fourth Division Award No. 3830 (Sickles)

"The Organization has asserted, among other things, that this claim must be sustained because Superintendent, Sims, was the charging officer; was, in essence, a witness; was the individual who decided and rendered the discipline (interpreting his own bulletin); and then became the First Appeals Officer. In this regard, the Employees rely upon, among others, Second Division Award 7119 concerning this Rail Carrier, Fourth Division Award 3746, and Fourth Division Award 3747 concerning these same parties.

"In its Submission, the Carrier made reference to certain historical practices which permit the activity complained of by the Organization.

"The Carrier repeated those assertions in its Rebuttal Submission and cited Second Division Award No. 8367, which suggested that a `...tangible and specific relationship between the multiplicity of roles..., in fact, or probably did in fact, occur.'

"In the presentation to the Board, the Carrier has repeated those assertions and, in addition, has cited Second Division Award 8412.

"Basically, as it relates to this procedural question under review, the Carrier reminds us that Second Division Award 7119 - relied upon by the Organization - held that `Each such case must turn on its own merits.' and that minor overlapping of roles, while not to be encouraged, `...is not prima facie evidence without more of prejudicial procedural imperfections;...'

"In our effort to resolve this dispute and to be responsive to the contentions and assertions of both sides, we have again reviewed all of the cited authority. While it may very well be that the author of Second Division Award 7119 found no prima facia evidence of a violation concerning some minor overlapping of roles, he held that the greater the merging of roles, the more compelling the influence of pre-judgment or prejudice. In the case there under review, he found that the same individual - although he did not actually testify against the Claimant at the hearing - activated the investigation, preferred the charges, held the hearing, reviewed the record, assessed the discipline, and denied the appeal. Such overlapping was not considered to be a mere technicality, but was held to be a substantial denial of the Claimant's rights.

"While Fourth Division Award 3746 is of interest as a precedential matter, Fourth Division Award 3747 takes on added significance when we recognize that said Award resolved a dispute between these same parties. There, the Superintendent was the Charging Officer, the Hearing Officer, the Decision Officer and an Appeals Officer. The Award held:

"`It views such multiplicity of roles as material and prejudicial to the right of fair trial and appeal which the contract requires. We agree. While numerous awards have held that some overlapping of functions in the hearing and decision process is not violative of due process and justice, the inclusion of the appeal hearing in such multiple duties attacks the integrity of the appeal process and denies the Claimant the independent, nonprejudicial consideration required by the appeal process.'

"Thereafter, the Author of Fourth Division Award 3747 cited, with favor, the pertinent portions of Section Division Award 7119.

"Second Division Awards 8367 and 8412, relied upon by the Carrier, stressed the need to show that the multiplicity of roles resulted in a procedural impediment to the Claimant's rights; rather than focusing on a question of concepts of `fair and impartial discipline...' which `...cannot be accomplished with such egregious overlapping of functions.', as denounced in Second Division Award 7119."

Fourth Division Award No. 3747 (McMurray)

"At the outset the Organization raises substantial procedural objections. The record reveals that Superintendent Hilton was the charging officer, hearing officer, decision officer, and finally an appeals officer. It views such multiplicity of roles as material and prejudicial to the right of fair trial and appeal which the contract requires. We agree. While numerous awards have held that some overlapping of functions in the hearing and decision process is not violative of due process and justice, the inclusion of the appeal hearing in such multiple duties attacks the integrity of the appeal process and denies the claimant the independent, non-prejudicial consideration required by the appeal process.

"In a similar situation on the same property Second Division Award No. 7119 treated with the problem as follows:

"`We have reviewed the conflicting awards cited by the parties on the question of multiplicity of roles by Carrier officers in discipline cases. We continue to adhere to our earlier general opinions that Carrier combines such functions in one individual at its peril; that some minor overlapping of roles, while not to be encouraged, is not prima facie evidence without more of prejudicial procedural imperfections; that the greater the merging of roles the more compelling the influence of prejudgment or prejudice and, that each such case must turn on its own merits. In the instant case we find that H. W. Sanders did not actually testify against Claimant in the hearing but that is literally the only function he did not fulfill in this matter. He activated the investigation, preferred the charges, held the hearing, reviewed the record, assessed the discipline, and denied the appeal. In so doing he fulfilled roles of investigator, prosecutor, trial judge and appelate (sic) judge. The disinterested development of evidence, the unbiased review thereof and the objective assessment of appropriate penalty inherent in concepts of fair and impartial discipline cannot be accomplished with such egregious overlapping of functions. This was not a mere technicality but a substantial denial of Claimant's rights. We are left with no alternative but to sustain the claim. See Awards 4536, 6329, 6439, 6795, and 7032.'

"This Board concurs with the foregoing decision.

"Claim sustained."

Public Law Board No. 2486, Award No. 2 (Eischen)

"Terminal Trainmaster Rhoden's various roles in the instant case commenced with his preliminary investigation of the incident occurring between Claimant and Assistant Trainmaster D. R. Allender, on November 8, 1978. At that time Mr. Rhoden was called by Mr. Allender because, the latter claimed, 'he had been struck by Mr. Mallory'. Subsequent to discussion with the two men, Mr. Rhoden issued the Notice of Hearing and Investigation (supra). There is evidence on the record that prior to the actual hearing Mr. Rhoden held discussions on the issue and evidence to be presented with Mr. K. L. Carius, the presiding hearing officer. At the hearing, Mr. Rhoden testified as a Carrier witness against Claimant. Finally, Mr. Rhoden, by letter of December 8, 1978, notified Claimant of his (i.e., Rhoden's) decision based on the hearing to dismiss Claimant. Probative record evidence establishes that prior to the hearing, Mr. Rhoden had already decided the `facts' of the case against Claimant.

"In light of the foregoing, we conclude that Mr. Rhoden's actions so tainted the November 8 proceedings as to obviate the possibility of Claimant's receiving a fair and impartial investigation. We therefore have no alternative but to sustain parts (a) and (b) of the claim as stated supra."