Third Division Award No. 20055 (Bergman) 

"The Organization claims that the Carrier violated Rule 43 (a) of the Agreement by holding claimant out of service before a hearing was held. The pertinent part of the Rule states that an employee in service more than 90 days, `will not be disciplined or held out of service without a fair and impartial hearing, ---.'

"The Carrier has argued that this rule does not require that the hearing be held first; before an employe may be held out of service, only that a hearing be held before discipline is imposed.

"It is within the realm of possibility that an employe may act in such manner as to require that he not be permitted to continue work pending a hearing. Two prior cases are cited in which this was done and no objection was made by the Organization. The prior examples are not disputed. Bearing in mind that the Carrier is responsible for the safety of the public and that damage to equipment may be involved, it would not be realistic to make a decision on this point other than on the facts of this case.

"In this case, there is no compelling reason or urgency shown to immediately remove the claimant from service. He was in the employe of the Carrier for about twenty four years. There is nothing in the record to show that he was a menace to the operation. He was not intoxicated and could have been sent back to work pending the hearing. The record shows that it was his job to change light bulbs in the terminal. He could have continued to perform this work with no danger to anyone. There is no evidence to the contrary."

Third Division Award No. 20272 (Blackwell)

"The Agreement of the parties (Rule 6-A-1(a)) provides that an employee may be held out of service pending investigation - `only if his retention in service could be detrimental to himself, another person, or the Company.'

"The record is barren of any evidence tending to show the existence of circumstances which, under the quoted text of the rule, justify a withholding from service pending investigation. Indeed, the Trainmaster stated that the Claimant was taken out of service `because of his past discipline record.' This reason is obviously not covered by the plain wording of the rule and, consequently, we shall award compensation to Claimant for the period of his pre-hearing suspension from service."

Third Division Award No. 20305 (Blackwell)

"The record contains substantial evidence to support a measure of discipline. However, the conflicting instructions from the foremen produced confusion and it is not surprising that the claimants resolved the confusion by relying on the statement of their regular foreman. The confusion constitutes an important mitigating fact and renders the discipline of permanent dismissal excessive. We shall therefore award that the claimants be restored to service without pay for time lost. Also, since the incident did not involve a serious infraction as contemplated by Rule 40-B., the claimants shall receive compensation for the period September 5 to 13, 1972 of the pre-hearing suspension."

Third Division Award No. 21341 (Blackwell)

"In view of the foregoing, and on the whole record, the record contains substantial evidence to support the Carrier's finding of guilt on the charge and the dispensation of discipline therefor.

"However, the Carrier's pre-hearing removal of the Claimants from service stands on a different footing. The provision under which the removal was effected provides that an employe under charges may `be held out of service pending such investigation, and such holding from service shall not be deemed a violation of the principle of fair and impartial investigation and appeal.' (Rule 22). As applied by the Carrier in this case, the foregoing provision has been given a breadth and scope which is out of all proportion to the language of the rule. The rules speaks only to the point that a pre-hearing removal from service will not be weighed against the Carrier in regard to an issue raised about the fairness and impartiality of the investigation and appeal. This rule thus protects the Carrier from a finding of unfairness or partiality attributable to a pre-hearing removal, but the rule does not relieve the Carrier of the obligation to have a rational and reasonable basis for making the removal in the first instance. In this case the record is barren of any indication that there was any compelling reason or urgency to remove the Claimants from service immediately. The record fails to show that they were intoxicated at the conclusion of the incident; the two Carrier officials made no statements to indicate that in their opinion the Claimants would be a menace to the operation if allowed to work; and there was nothing about the nature of their work which made it imperative to remove them from service. Both Claimants had good prior records of over twenty years of work in the Carrier's service. In these circumstances there was no proper basis for the pre-hearing removal from service and the Carrier's action in doing so was arbitrary and violative of the Agreement. Awards Nos. 5140, 6659, and 20055. Accordingly, the claim will be sustained to the extent that the Carrier shall compensate the Claimants for the time lost by reason of their removal from service prior to the hearing." (Emphasis ours)

Third Division Award No. 22034 (Lieberman)

"The question of the penalties imposed by the Carrier raises a number of questions. First, with respect to Carrier's act of removing Claimant from service prior to the investigation, we are most dubious as to whether her actions on August 14th constituted a `proper case' under Rule 45 warranting suspension. We think not for two reasons. In the first instance, if her conduct warranted suspension prior to the hearing, Carrier should not have waited until several days later (after receipt of the letter of August 16th) to remove her from service. If her conduct constituted a hazard it should have been so considered immediately, not after a hiatus. Secondly, the incident on August 14th did not meet the test, long relied upon in this industry, of conduct which could potentially prove hazardous to the employe, to other employes, to the public or to Carrier's property. Thus, Claimant should be compensated for all time held out of service prior to her receipt of Carrier's letter of dismissal dated August 19, 1976." (Emphasis added)

Third Division Award No. 23412 (Dennis)

"This Board has thoroughly reviewed the record of this case. That record does not fully support the actions of the Carrier---specifically, Carrier's action of immediately suspending claimant for not wearing his safety hat.

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"We see no rational reason for the immediate suspension of claimant in this case. This Board has rendered numerous decisions involving the interpretation of this clause. If an offense is considered sufficiently serious, an employe may be suspended, pending a hearing. Third Division Award 21447 (Referee Zumas) is particularly appropriate here. In that case, just as here, Carrier argued that since an employe can be discharged for insubordination, such an offense is sufficiently serious to justify suspension pending a hearing and decision.

"This Board has no disagreement with the concept that insubordination may be grounds for discharge. That is not germane. What is important is whether, under the circumstances present in this dispute, Carrier was justified in suspending claimant for 26 days prior to rendering a decision for not wearing a hard hat and alleged insubordination. We think not.

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"It is the opinion of this Board that Carrier erred when it took claimant out of service without a hearing. We are therefore ordering that claimant be reimbursed for all lost wages from August 10, 1978, to September 5, 1978, the date of issuance of Carrier's decision in this case."

Third Division Award No. 23905 (Roukis)

"In our review of this case, we have carefully considered the procedural and substantive arguments advanced by Claimant, but we have not found them persuasive. The investigation was conducted in accordance with the requirements of contracted for due process and the evidence adduced at the hearing fully shows that he failed to properly protect his position on August 1, 1978. Claimant was impermissibly absent on August 1, 1978 and he acted at his peril when he did not report to work but rather attended a little league baseball game. Carrier had the right to remove him from service that day, deny his claim for sick pay and discipline him for his infraction, consistant (sic) with the applicable rules of the controlling Agreement and it acted properly when it took these measures. However, we find that Claimant was improperly held out of service on August 2, 1978, since he was returned to service on August 3, 1978, four days prior to the August 7th investigation. He should have been returned to work on August 2 under these circumstances. Thus we will award him the eight (8) hours pay claimed in Part 4 of the Statement of Claim."