Fourth Division Award No. 2194 (Seidenberg) 

"The Organization contends that the proceedings were procedurally defective because Mr. Musser acted as complainant, hearing officer, prosecutor, and judge in this matter. On the other hand, the Carrier maintains that the Organization took no exception to the procedure in the handling of this case on the property, and therefore it should not now be considered by this Board. It further states that the same procedure is followed, where practicable, in all discipline cases on the property. It has the uniform practice of having the officer conducting the hearing, make the decision and issue the discipline in all cases where it is possible to do so. It states that there is no schedule rule that provides that the officer signing the hearing notice may not conduct the hearing, consequently there is no basis for objecting on this account.

"The Board finds that the Carrier's procedure in this case is basically violative of its contractual obligation to afford the Claimant a fair and impartial trial as stated in Rule 12 of the Schedule. A hearing which is conducted by the same individual who preferred the charges, weighed the evidence, determined the guilt, and imposed the sanction is not a fair and impartial hearing. The record shows that the Organization throughout the course of the hearing as well as at its conclusion, protested that the hearing was not being conducted in a fair and impartial manner. But without ruling specifically whether there was a timely objection entered, the record is clear that the procedural defects were so material that they completely vitiated procedural due process, and the discipline must fall."

Fourth Division Award No. 2167 (Seidenberg)

"The Board finds that one of the procedural objections made by the Organization is well taken. The several functions exercised by Superintendent Fadale, wherein he preferred charges against the claimant, then testified against him at the hearing, and finally passed judgment as to his guilt based on the record made at the investigative hearing, are clearly incompatible with the concept of a fair and impartial hearing guaranteed the claimant by Rule 18. The roles occupied by Mr. Fadale, permitted him, among other things, to pass judgment on his own testimony.

"The Board finds no merit to the Carrier's contention that the aforementioned practice has existed on the property for many years without challenge. However, the Board is now faced with the move that the Organization has challenged the practice, and the Board has no recourse but to rule on this practice and, after review, find it violative of the basic concept of a fair and impartial trial to have the same company official act as `accuser,' `witness,' and `judge' of the accusations or charges."

Fourth Division Award No. 3382 (Lieberman)

"It is obvious that Claimant's rights would have been prejudiced if the Trainmaster had rendered the decision under Rule 6-A-1, but such was not the case in the handling herein. In the interest of equity and due process, even with a non-mandatory disciplinary process such as that in this dispute, Carrier's point is well taken; when a Carrier officer appears as a witness against a Claimant, he may not thereafter make a decision or reply at any level of the appellate process. . . ."

Third Division Award No. 21040 (Sickles)

"Claimant next asserts that the first Carrier designated appellate officer forwarded the file to the final designated appellate officer for his `verdict.' It is alleged that intervention by the highest appellate officer at the initial level of appeal effectively destroyed a meaningful avenue of appeal. Claimant also notes that participation in the appellate process by the individual who made the initial decision to discharge was prejudicial to Claimant's substantial rights. We also note that the same official preferred the charges, appeared as witness and made the decision to terminate.

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"We do not comment upon the possible end result concerning each isolated allegation of error. But, in a hotly contested case concerning severe questions of credibility, we feel that the combination of errors, considered in their entirety, were prejudicial to Claimant, and we will sustain."

Third Division Award No. 20471 (Lazar)

"The Carrier argues (R115) that `it is fair to note that none of these men are trained in the law, and so may well not be sensitive to the more finely drawn lines of judicial propriety.' This Board has in numerous cases respected the pragmatic and fair-minded view of management in discipline cases and has refused to overturn discipline because of some strained technicality, irregularity, or non-prejudicial error. We do not read Rule 56 as mandating the nullification of a proceeding where there might be found harmless error or technical irregularity committed by laymen in good faith in executing their responsibilities. Thus, in construing Rule 56, were we to find that the entire record affirmatively shows that an error or defect in the proceedings was without substantial influence on the result and was nonprejudicial since no substantial rights of an accused were affected, we would deem such an error to be `harmless error.' An accused, however, has an unquestioned fundamental right to be judged by an impartial and unbiased person. This fundamental right is violated where the judge serves as key prosecution witness. Plain, every-day fairness condemns a procedure empowering the witness to be the judge of his own testimony and the testimony also of opposing witnesses. The denial of the accused's fundamental right to an investigation held in a fair and impartial manner renders the investigation and discipline null and void."

First Division Award No. 10616 (Thaxter)

"But there is another and possibly more fundamental reason why this claim must be sustained. The trainmaster was the person who was engaged in the altercation with the claimant, he filed the complaint, at the hearing he was the only witness who offered any pertinent testimony to support the charge, he then sat in judgment on the truthfulness and weight of his own testimony, and imposed the sentence of dismissal. Such a procedure would be condemned by every court in the land, and the impropriety of it has been pointed out in awards of this Division, Awards 8259, 8785. The Carrier's justification for such procedure, as set forth in its rebuttal, is that it `is universal in hearings of this kind,' that the hearing is not a trial as conducted by a court, and that technical rules are inapplicable. But the rule of law, which forbids one person to assume the role of prosecutor, witness, and judge, is not a technical rule. It is an incorporation by courts into the procedure of the ordinary principles of fair play which men customarily adopt in their dealings with one another."

Second Division Award No. 7032 (Eischen)

". . . But we similarly do not reach this question in the instant case because of the fatal procedural defect by which Carrier utilized Gray as accuser, hearing officer, reviewer of his own hearing record, assessor of discipline and appeals officer. We are aware of Awards going both ways on the issue of Carrier officers performing more than one role in disciplinary matters and each such case apparently must turn on its individual facts. We have no doubt in this case, however, that the personal involvement of Gray at every phase of the disciplinary process rendered it impossible, both in appearance and in fact, for Claimant to receive a fair and impartial investigation. As we stated in Award 5223: 'If discipline hearings prescribed by collective bargaining agreements are to possess any meaning, they must be conducted impartially and in line with elementary standards of fair play, no matter how informal the proceedings may be'. Because of the defects mentioned supra, the discipline imposed cannot be upheld on the record developed in this case."

Second Division Award No. 6795 (Eischen)

"Further close analysis of this record sustains the Petitioner's assertion of serious procedural impropriety in yet another respect, i.e., Mr. James Foos, the Carrier supervisor who proffered the charges against Claimant, was the chief witness against Claimant at the hearing; yet Mr. Foos also weighed the evidence and assessed the penalty of dismissal following the investigation.

"This Board has not infrequently sustained claims in discipline cases where Carrier has deprived claimants of a fair hearing either by prejudice and prejudgement (sic) of the hearing officer, see Second Division Awards 4988 (Weston), 6158 (McGovern) and 6225 (Dugan); or by having the same Carrier official perform the several functions of complainant, witness, jury and judge. See Second Division Award 4536 (Seidenberg), 5642 (Ritter) and Fourth Division Award 2150 (Seidenberg). We have read carefully the awards cited by Carrier herein, including 6196 (Quinn), and find nothing inconsistent with the foregoing principles therein.

"On this record we have both hearing officer prejudgement (sic) at the hearing and an improper overlapping of prosecutorial and judgemental (sic) roles, the net effect of which is to deprive claimant of a fair hearing. Carrier bears the serious responsibility of assuring an accused employe a fair and impartial hearing. This responsibility is ignored only at the period that serious and prejudicial procedural defects may prove fatal to Carrier's substantive case. Such is the case herein and we shall sustain part 1 of the claim to the extent that Claimant was unjustly dismissed from all services on July 5, 1972 as a result of the investigation held on June 8, 1972."

Fourth Division Award No. 4042 (Lieberman)

"Among the many procedural issues raised by the Organization, particular note must be taken of the allegation that Claimant was deprived of due process and contract protection in the appellate process. Petitioner points out that Superintendent Snyder decided initially the guilt of Claimant, assessed the discipline and also acted as the first appeals officer of Carrier.

"The question of the integrity of the disciplinary process in this industry has been the subject of innumerable awards and considerable controversey (sic). In this Board's view if the process is to be accorded any meaning and respect, it must be beyond reproach from the Carrier's point of view: it must contain all the elements of fairness and impartiality in both the investigation and the subsequent appellate steps. This principle is particularly significant with respect to the question of multiple roles played by the Carrier officers. In Second Division Award 7119, the Board stated:

"`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 the greater the merging of roles the more compelling the influence of prejudgment or prejudice and, that each case must turn on its own merits....'

"We are here concerned with the import of the officer who rendered the initial judgment of guilt and imposed the discipline, also functioning as the appellate officer. In Award 3747 we said:

"`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 to the claimant the independent, non-prejudicial consideration required by the appeal process.'

"The same point of view has been expressed in Awards 3746, 3747 and 3830 of this Board as well as in Second Division Award No. 8898. We wish to affirm this point of view. It is our view that in this dispute Superintendent Snyder, having rendered the inital (sic) decisions and imposed the discipline could not, therefore, afford Claimant a fair appellate hearing, as required by the contractual process.

"We do not deem it necessary to deal with the other procedural questions, in view of our determination above; further, we may not reach the merits of this dispute; the claim must be sustained."

Third Division Award No. 30601 (Vaughn)

"The Organization's argument that the Carrier violated Claimant's right to a fair hearing by utilizing Superintendent Eckles as the reviewing and deciding official for charges for which he had already suspended Claimant and convened a hearing touches the basic right of Claimant to an independent review of the record and assessment of guilt and penalty. This the Board believes could not have occurred, by the very fact of Mr. Eckles' earlier, substantive participation in the decision to suspend Claimant, pending hearing, and his preliminary inquiry in connection with that decision. Mr. Eckles' inquiry and determination to suspend Claimant, pending investigation, gave him information in connection with the incident other than that acquired through the hearing. His pre-hearing determination to suspend Claimant both implicated his conclusion as to the likelihood of Claimant's violation and his conclusion, necessary under Rule 18, Section 1, Paragraph (b) of the applicable Agreement, that his retention in service, pending hearing, would be detrimental to himself, another person, or the Company - a necessary reflection as to Mr. Eckles' view of the seriousness of the offense. We are persuaded that the Carrier's utilization of Mr. Eckles, later in the process, to review his own, earlier determinations and to select and impose the penalty, violated Claimant's right to an independent review and requires a sustaining award.

"The Board acknowledges the Carrier's right to determine Claimant's right to determine an employee's qualifications for a job; but when the Carrier disqualifies an employee as a disciplinary penalty, it must be prepared to establish both the employee's violation and, when challenged, to establish that it afforded the employee due process and fair hearing. This the Carrier did not do in the case of Claimant' and, for that reason, his permanent disqualification must be rescinded.

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"The Carrier failed to afford Claimant due process and a fair hearing. The penalties of suspension and permanent disqualification as a dispatcher shall be rescinded and Claimant returned to service as a dispatcher with seniority unimpaired, and made whole for wages and benefits lost. Claimant's return to service as a dispatcher shall be subject to his requalification."