Fourth Division Award No. 2349 (Dorsey)

"The jurisdiction of this Board in discipline cases is limited to reviewing the record made on the property to determine whether: (1) the employe charged was afforded due process; (2) Carrier's finding of guilt as charged, in whole or in part, is supported by substantial evidence; and (3) the discipline imposed was reasonable.

"Substantial evidence is that material and relevant evidence which is believed by the trier of facts supports the findings made. When there is conflicting testimony the determination of credibility, generally, is exclusively reserved to the trier of the facts who has observed the demeanor of the witnesses."

Fourth Division Award No. 3278 (Lieberman)

"We are confronted with a matter of circumstantial evidence and with a credibility question. First it would seem rather difficult to assume that gas was placed in Claimant's vehicle without his knowledge or consent by one of his subordinates; a possible but rather bizarre hypothesis. More importantly it has been long established by this Board (and on all the Divisions of the National Railroad Adjustment Board) that it is not our function to resolve questions of credibility in discipline disputes; findings in such cases should not be disturbed when they are supported by substantial, though controverted, evidence. The trier of the facts is vested with the exclusive authority to resolve conflicts of testimony. (See for example, Awards 2349, 2702, 2903 and 3227)."

Fourth Division Award No. 3227 (Lieberman)

"The Carrier's conclusion of Claimant's guilt is supported by probative evidence, with respect to all three charges. Although there was a denial by Claimant, we may not make findings of credibility; that prerogative is retained by Carrier's hearing officer. It must be concluded that the penalty was appropriate in the circumstances and should not be overturned."

Third Division Award No. 13180 (Dorsey)

"There is conflicting testimony in the transcript of the hearing as to material and relevant facts. Only the hearing officer who presided at the hearing and observed the demeanor of the witnesses was qualified to make findings as to credibility. He did not do so. In the absence of resolution of credibility by the hearing officer it cannot be determined whether there is substantial evidence to support the findings made by General Agent Key. We find, therefore, that Carrier failed to afford Claimant a fair and impartial hearing. We will sustain the Claim."

Third Division Award No. 13240 (Dorsey)

"In this case we have only the statements of the Complainants in absolute conflict with that of Claimant. Which, if either, is worthy of credit could be determined only by an impartial hearing officer who had the opportunity to observe the personality and demeanor of the witnesses while testifying. Upon the facts of record, herein, the mind of man has developed no other acceptable manner to resolve credibility. See, Sahm, Demeanor Evidence; Elusive and Intangible Imponderables, 47 A.B.A.J. 580 (June 1961).

"The Hearing Officer, in this case, never saw the Complainants. He was, therefore, not qualified to pass on their credibility. Worse, still, the Hearing Officer made no finding of credibility and made no decision. It is offensive to the concepts of fairness and impartially that credibility was determined and decision made by Superintendent Brewer who had issued the charge and was not present at the hearing.

"In the absence of a finding of credibility by a qualified hearing officer the statements of Complainants have no probative value. Consequently, the decision made on the property is not supported by substantial evidence. We will sustain the Claim."

Third Division Award No. 14031 (Hamilton)

"We are of the opinion that after Trainmaster Newell conducted the investigation, that Superintendent Bishop reviewed the transcript, determined Claimant's guilt, and ordered him dismissed. We hold that this was a fundamental violation of due process of law and a specific violation of Rule 20(d)."

Third Division Award No. 14267 (Hamilton)

"We believe that there is sufficient reasonable doubt to allow us to think that the officer who handed down the decision in this case was not the officer who heard the case, and therefore he doesn't know anymore about the truth or appearance of the witnesses than do we or anyone else. However, this was not raised on the property or in the submission or argument to this Board. Therefore, the question is not properly before us in this case.

"It should be noted however, by the Carrier, that we expect the officer who hears these cases, to make a written recommendation to his superior as to his findings of fact and suggestions of proposed action, if in fact he does not actually make the final decision.

"Now, no doubt, a good portion of this opinion will be brushed aside by some as 'dicta.' We would suggest however, that the Carrier could avoid many problems if it would pay attention to the thoughts enunciated in these rather difficult situations involving discipline."

Third Division Award No. 17901 (Dorsey) citing earlier Award Nos. 13180, 13240, 14031 and Second Division Award No. 3266:

"Carrier appointed as hearing officer one G. A. Street, Assistant Superintendent, Penn Central Company. After the hearing Street made no report, made no findings, made no decision.

"The transcript of the hearing discloses numerous conflicts in the testimony of the witnesses. Only the hearing officer who observed the demeanor of the witnesses was qualified to make findings of credibility under such circumstances. See our Award No. 13180 in which held.

"`There is conflicting testimony in the transcript of the hearing as to material and relevant facts. Only the hearing officer who presided at the hearing and observed the demeanor of the witness was qualified to make findings as to credibility. He did not do so. In the absence of resolution of credibility by the hearing officer it cannot be determined whether there is substantial evidence to support the findings made by General Agent Key. We find, therefore, that Carrier failed to afford claimant a fair and impartial hearing. We will sustain the claim.'

"Also see Award 13240 in which we stated:

"`...the Hearing Officer made no finding of credibility and made no decision. It is offensive to the concepts of fairness and impartially (sic) that credibility was determined and decision made by Superintendent Brewer who had issued the charge and was not present at the hearing.

"`In the absence of a finding of credibility by a qualified hearing officer the statements of Complainants have no probative value. Consequently, the decision made on the property is not supported by substantial evidence. We will sustain the claim.'

"Other apposite Awards are: Third Division Award No. 14031 and Second Division Award No. 3266.

"For the foregoing reasons we find that Claimant was (1) not afforded due process; and (2) the charge against Claimant was not sustained. We therefore are compelled to sustain the Claim."

Third Division Award No. 23007 (Carter)

"... While there were some conflicts in the testimony given at the hearing, it is not the function of this Board to weigh evidence, attempt to resolve conflicts therein, or to pass upon the credibility of witnesses. Such functions are reserved to the hearing officer."

Third Division Award No. 22145 (Lieberman)

"... This Board is not in a position to make credibility findings; that task is reserved to the trier of facts on the property. This principle has been adhered to by this Board for many years and is well established (see for example Awards 19487, 21290, 21278 and 21238). Since the conflicts in the testimony were resolved by the hearing officer in favor of Carrier, there is no question but that there was substantial evidence to support Carrier's conclusion that Claimant was guilty of the two charges."

Fourth Division Award No. 4077 (McAllister)

"... As this Board has repeatedly stated, the Hearing Officer, as the trier of facts, is looked upon as being the only appropriate person to determine credibility and to weigh conflicting evidence. ..."

Not only do the Awards support our position, but Carrier Members of the Fourth Division hold to this well established principle. This fact is confirmed in the Carrier Members' Dissent to Fourth Division Award No. 1741 wherein it was stated:

"It is a firmly established principle of this Board that the degree of proof required to support a finding upon which discipline may be based is to be determined by the investigating officer. It is his duty to determine the credibility of those who testify and to weigh and evaluate their testimony. If he finds the charge has been proven by evidence . . ." (Emphasis ours)

Third Division Award No. 7088 (Whiting)

"Pursuant to notice dated May 23, 1952 an investigation was conducted by the Terminal Agent at Lorain on May 28, 1952 upon a charge that the claimant improperly authorized a change in the car number on a waybill. Rule 47 (a) provides for fair and impartial investigations and that `decision in writing will be rendered within thirty (30) days after completion thereof'. Rule 47 (b) provides a right of appeal (a) to Superintendent, (b) to General Manager, etc., and 47 (c) provides that in event of appeal in writing `the employe shall be entitled to a fair and impartial hearing before the next officer.'

"In this case no decision in writing was rendered within 30 days after completion of the investigation, unless the service entry record dated June 23, 1952 and signed by the Superintendent can be so considered. It does not appear to be such a decision and it was not transmitted to claimant until July 3, 1952. The Superintendent did not conduct the investigation nor attend it.

"The plain meaning of such a rule is that the official who conducted the investigation, hear the evidence and saw the witnesses will evaluate the evidence and decide whether the employe was guilty or innocent of the charge against him. Then within 30 days after completion of the investigation that decision must be placed in writing and transmitted to the employe. Such a decision may or may not include the imposition of discipline if found guilty. The investigation may have been conducted by one not authorized to impose discipline and such action may be taken by the proper official on the basis of the decision mentioned. Rule 47 (f) indicates that the parties recognized the difference between a decision as to guilt or innocence and the imposition of discipline upon one found guilty.

"As noted above the service entry record of discipline was signed by the Superintendent, before whom the claimant had a contractual right to a fair and impartial hearing on appeal. That entry shows that such official had determined the case against the claimant and she was thereby deprived of her contract right to a fair and impartial hearing before him on appeal.

"Rights accorded to employes by rules such as Rule 47 are substantial ones and constitute their sole protection against arbitrary, capricious or discriminatory action by carrier officials. Violation of such rights cannot be regarded lightly. The claim must be sustained except as hereafter noted."

Third Division Award No. 8020 (Bailer)

"This is a discipline case involving H. G. Houghtaling, seniority date of December 11, 1927, who was regularly assigned as Chief Money Clerk in Carrier's Money Department at Los Angeles. Under date of January 18, 1954 Terminal Agent C. L. Johnson sent Claimant a notice of an investigation to be held on the latter's alleged violation of Rule 827 of Carrier's General Rules and Instructions. The investigation was conducted before Supervisor V. V. Fansler, the Claimant appearing and certain testimony being adduced. Terminal Agent Johnson was not present at the investigation but following the conclusion thereof he issued a finding of the Claimant's guilt and assessed discipline. Johnson's determination of guilt was based upon his review of the `minute of investigation.'

"Rule 29 of the Agreement provides that employes similarly situated to Claimant `shall not be discipline or dismissed without investigation' and that `a written decision will be rendered within seven (7) days after completion of investigation.'

"In Award 7088 we considered a rule similar in all material respects to the provision now before us. In that Award we said:

"`The plain meaning of such a rule is that the official who conducted the investigation, heard the evidence and saw the witnesses will evaluate the evidence and decide whether the employe was guilty or innocent of the charge against him.'

"See Also Award 6087.

"We note that in response to the Organization's attempt to discredit the testimony of certain witnesses produced by Management at the investigation, Carrier states: `The credibility of witnesses is a matter to be determined by the officer who conducts the investigation. He has the opportunity to note the demeanor of the witness and the manner in which testimony is presented.' (P. 94 of record, p. 4 of Carrier's answer to Organization's ex parte submission.) The Carrier goes on to say that `the one conducting the investigation determined that the testimony (of the witnesses in question) was credible.' (Insert supplied.) Supervisor Fansler did not decide the guilt or innocence of the Claimant, however, although as the Carrier must concede, he was in a far better position to evaluate the testimony that was Terminal Agent Johnson.

"We conclude that the Carrier failed to comply with Rule 29, that such failure represents a fatal procedural defect prejudicial to the rights of the Claimant, and that in consequence the disciplinary action taken must be revoked."

Second Division Award No. 12690 (Hennecke)

"After a thorough review of the record of the investigation, we find that the Investigation was conducted in a fair and impartial manner. The Organization has strenuously challenged the credibility of the testimony of Claimant's supervisor (the other party involved in the altercation); however, it is not the function of this Board to assess the credibility of witnesses, weigh the evidence or to resolve conflicts in testimony. That is the function of the Hearing Officer. The function of the Board, as an appellate body, is to review the evidence as a whole and to determine if substantial evidence exists to support the Hearing Officer's decision (see Second Division Award 8552). The record contains substantial evidence to support Carrier's finding that Claimant was guilty of the charges. Claimant's conduct in this instance was unacceptable by any standard. The Board cannot conclude that Carrier acted in an unreasonable, arbitrary, capricious or discriminatory manner in assessing the penalty of dismissal against Claimant."

Public Law Board No. 5529, Award No. 5 (Fredenberger)

"Award No. 3 of Public Law Board No. 5046, Apr. 16, 1993, (Mason, Neutral), between the same parties and interpreting the same agreement, set aside the discipline in that case in part because the Hearing Officer failed to render an opinion to the Carrier as to the credibility of witnesses who gave conflicting testimony at the investigation. Clearly, Award No. 3 stands as an interpretation of the applicable schedule agreement concerning the obligations of a Hearing Officer conducting an investigation on this property. We believe the Hearing Officer's failure in this case to make a credibility determination or to render an opinion as to credibility with respect to the conflicting testimony of Claimant and the Terminal Manager as to their July 12, 1993 conversation renders this case indistinguishable from Award No. 3. There has been no argument here, nor is there probative evidence, that the award is patently erroneous. Accordingly, we find no basis upon which to disregard or depart from the holding of the award.

"In view of the foregoing we are constrained to set aside the discipline in this case."

Second Division Award No. 12804 (Wesman)

"With respect to the merits of the case, the Brotherhood alleges that Carrier has failed to meet its burden of proof, since the only Carrier witness against Claimant is his supervisor. The Brotherhood also suggests that the charges were a result of a 'hidden agenda' and 'malice and forethought' (sic) on the part of the supervisor. After reviewing the record, this Board finds no evidence of entrapment. Nor does the fact that the supervisor is the only witness testifying against Claimant fatally undermine the Carrier's position. Those witnesses testifying for Claimant alluded to prior difficulties each had had with this supervisor, but none provided probative testimony regarding the incident at hand. Accordingly, the case turns upon the directly contradictory testimony of the sole protagonists.

"This Board has long held that credibility issues are generally to be regarded as within the province of the Hearing Officer, and the testimony of one witness may be sufficient to establish a preponderance of the evidence. Third Division Awards: 21054, 25102, 24991, 25873, 25316, 29077, 29412. Absent a showing of malicious predisposition on the part of the supervisor or the hearing officer, this Board finds no basis for overturning Carrier's assessed discipline."

Second Division Award No. 12808 (Wesman)

"The Board is in accord with Carrier regarding the irrelevance of actual performance of a task following an act of insubordination. Employees are not free to respond to orders in a disrespectful or insubordinate manner simply because they intend to follow the orders in the end. With respect to the determination of credibility, it is a long established tradition on this and other Boards that we will not normally substitute our judgement of credibility between opposing witnesses for that of the Hearing Officer, unless there is compelling evidence in the transcript to support our doing so. In the instant case, there is insufficient evidence to contradict the Hearing Officer's determination of credibility."

Third Division Award No. 30676 (Goldstein)

"To the extent that there are credibility conflicts or discrepancies in the record, we must reiterate what has already been said in many prior Awards of this Board. It is not the Board's function to weigh the evidence, appraise the credibility of witnesses, or substitute its judgment for that of the Hearing Officer in the absence of a showing that Carrier's determination was arbitrary, capricious or discriminatory. Third Division Awards 4840, 15025. We find nothing in this record to overturn the findings as originally determined."

Second Division Award No. 12626 (Muessig)

"With respect to the second charge, Rice denies that he was instructed to not fraternize with Hixon while on duty. Supervisor Evans ('Evans') testified that he told both Hixson and Rice to refrain from the identified behavior as noted in the charge. Hixson testified that Evans instructed her not to fraternize with Rice and that she should convey this instruction to Rice. Hixson further testified that she 'did mention' the instruction to Rice. Accordingly, the Hearing Officer and, in turn, the Board is confronted with a credibility question. Under the circumstances, the Board finds that it has no basis for not adhering to a basic and well-established principle that the trier of the facts is vested with the exclusive authority to resolve conflicts of testimony."

Third Division Award No. 30015 (Mason)

"This is but one of the contradictions and unresolved allegations which make up the main body of the transcript. The Carrier's argument relative to the Hearing Officer being the one to hear the testimony and resolve credibility conflict is a valid one. This Board has so held in many cases. However, in this case, we do not see any evidence that the Hearing Officer made any credibility determinations. We do not find any evidence that he made any recommendations relative to the Hearing record which he developed. What we do have in this case is a situation which is very similar to that which is found in the Third Division Award 13180, which was repeated in First Division Award 23946, where the Board held:

'There is conflicting testimony in the transcript of the hearing as to material and relevant facts. Only the hearing officer who presided at the hearing and observed the demeanor of the witnesses was qualified to make findings as to credibility. He did not do so. In the absence of resolution of credibility by the hearing officer, it cannot be determined whether there is substantial evidence to support the findings made by General Agent Key.'

"Additionally, we agree completely with Carrier's contention relative to the effects of unpunished insubordination. The citations offered by the Carrier in this regard are all well reasoned decisions. However, before there can be punishment properly administered, there must be substantial evidence - that is more than a mere scintilla - to support the conclusion that the accused employee was, in fact, guilty of insubordination. On the basis of the Hearing record in this case, we do not find that there is relevant evidence which a reasonable mind might accept as adequate to support the conclusion that Claimant was, in fact, insubordinate in this instance.

"Therefore, it is our conclusion that the discipline must be rescinded."

First Division Award No. 23946 (Fletcher)

"We agree completely with the first two sentences and agree with the third sentence in those instances where the officer making the determination concerning discipline was also the officer which conducted the investigation. However, if he did not conduct the investigation he did not observe the demeanor of the witnesses and was not qualified to make findings as to credibility. In this regard see Third Division Award 13180, wherein the Board stated:

'There is conflicting testimony in the transcript of the hearing as to material and relevant facts. Only the hearing officer who presided at the hearing and observed the demeanor of the witnesses was qualified to make findings as to credibility. He did not do so. In the absence of resolution of credibility by the hearing officer, it cannot be determined whether there is substantial evidence to support the findings made by General Agent Key.' (Underscoring added.)"

Public Law Board No. 5046, Award No. 3 (Mason)

"In this, as in practically every discipline case, there is a marked divergence of opinion and testimony between the Carrier witnesses and the Claimant. It has been long held that Boards of this nature cannot and will not attempt to resolve conflicts of testimony or make determinations on credibility issues. While these on-property disciplinary hearings are not courts of law and while the rules of evidence in these hearings are not the same as those found in courts of law, the hearing officer in such a proceeding does have the authority and responsibility to make credibility determinations based upon his/her observance of the witnesses and his/her hearing and understanding of the testimony as it is presented. The hearing officer is more than a passive fact gatherer.

"Section 3, R.L.A. Boards have repeatedly held that the hearing officer in railroad discipline situations is the officer who hears the testimony and who observes the demeanor of the witnesses who testify. Therefore, it has been held that the hearing officer is the proper officer to make findings of credibility and make determinations of guilt or innocence of the charges.

"It is disturbing, therefore, to find in this case that the hearing officer(s) stated on the record that:

'Mr. Rogers, your objection will be noted and made part of the transcript. The investigation will continue, I will clarify one thing that you have stated that the investigating officer will determine. The investigating officer does not determine anything to do with the investigation, except to have a fair and impartial investigation, and to provide all facts under investigation relative to the moves being made on the date of November the 7th, 1990.

'As far as the investigating officer having anything to do with the transcript or any discipline, or anything to do with this hearing, the only thing the hearing officer is here for is to make sure that it is held in a fair and impartial manner and that all facts are presented as known to everyone available.'

"It is further disturbing in this case to find that the hearing officer(s) made no recommendation to the Carrier relative to their hearing of the testimony and/or their observation of the witnesses during the testimony and/or their opinion of the credibility of the testimony. Neither did the hearing officer(s) assess the discipline in this case. While this Board has not been made aware of any provision on the negotiated rules agreement which requires or dictates who will assess discipline following a hearing, common sense and common fairness strongly suggest that the hearing officer as the trier of facts should have some first-hand input into the determination of guilt and the assessment of discipline following a hearing in which the hearing officer presided, heard the testimony and observed the demeanor of the witnesses. This Board has no authority to tell the Carrier who should assess discipline following a hearing and does not do so here. This Board does, however, find the Opinion of Referee John Dorsey in award 17901, Third Division, N.R.A.B. apropos to this situation. There we read:

'Carrier appointed as hearing office one G. A. Street, Assistant Superintendent, Penn Central Company. After the hearing Street made no report, made no findings, made no decision.

'The transcript of the hearing discloses numerous conflicts in the testimony of the witnesses. Only the hearing officer who observed the demeanor of the witnesses was qualified to make findings of credibility under such circumstances. See our Award No. 13180 in which we held:

'There is conflicting testimony in the transcript of the hearing as to material and relevant facts. Only the hearing officer who presided at the hearing and observed the demeanor of the witnesses was qualified to make findings as to credibility. He did not do so. In the absence of resolution of credibility by the hearing officer it cannot be determined whether there is substantial evidence to support the findings made by General Agent Key. We find, therefore, that Carrier failed to afford claimant a fair and impartial hearing. We will sustain the claim.'

'Also see Award 13240 in which we stated:

'. . .the Hearing officer made no finding of credibility and made no decision. It is offensive to the concepts of fairness and impartially (sic) that credibility was determined and decision made by Superintendent Brewer who had issued the charge and was not present at the hearing.

'In the absence of a finding of credibility by a qualified hearing officer the statements of Complainants have no probative value. Consequently, the decision made on the property is not supported by substantial evidence. We will sustain the claim.'

'Other apposite Awards are Third Division Award No. 14031 and Second Division Award No. 3266.

'For the foregoing reasons we find that claimant was: (1) no afforded due process; and (2) the charge against Claimant was not sustained. We therefore are compelled to sustain the Claim.'"

Third Division Award No. 31774 (Malin)

"As an appellate body, we generally defer to credibility determinations made on the property. This is because the hearing officer, having observed all of the witnesses, is in the best position to make such determinations. However, in the instant case, there is nothing to indicate that the hearing officer made any credibility determinations. Thus, faced only with a discipline notice issued by someone other than the hearing officer, we have nothing to which we can defer. Under these circumstances, we find that the failure of the hearing officer to find the facts and evaluate the relative credibility of the various witnesses deprived Claimant Pool of a fair investigation. Our finding is consistent with prior decisions of this Board under similar circumstances. See Third Division Awards 30015, 13180."