WITNESSES WITH RELEVANT INFORMATION SHOULD TESTIFY AT HEARING (23)

First Division Award No. 19873 (Daugherty) 

"Given all these circumstances, the Division finds that Carrier should have called towermen Apdar and Carvak as critical witnesses, whether or not requested to do so by the employes. Carrier has an affirmative obligation to develop all material facts possible."

First Division Award No. 20094 (Seidenberg)

"While the course of the disciplinary proceedings is under the control and direction of the carrier, nevertheless it is not permitted to cull or select data for presentation which only tends to demonstrate or prove the fault or wrongdoing of the employe being tried. In this case the authority to invoke disciplinary proceedings flows from Regulation 6-A-1 of the Agreement, which provides:

"`Firemen will not be suspended nor dismissed from service without a fair and impartial trial . . .'

"This provision is a guarantee by the carrier that it will deal impartially with the employe in accordance with the commonly accepted standards of fairness. It means that not only will there be a complete investigation, but that there will also be a complete and a fair trial. And that in the conduct of that trial it will present all the material facts - those which favor as well as those which are adverse to the claimant - in order that it may determine upon the full record whether the imposition of sanctions is warranted.

"Not only do the contractual provisions of a fair trial demand the submission of all relevant information, but such a submission is also necessary for the protection of the carrier's interests. It is not unlikely that the carrier, after considering the full record, might arrive at a different decision concerning the imposition of discipline than it would have absent the receipt of the excluded information, and thus avoid contingent liability for claims which might be made against it.

"While this record indicates that the detail and degree of specificity of the carrier's disciplinary machinery is somewhat different than that of other carriers, the basic authority is derived from the same source - a voluntary agreement between the parties. And like other carrier disciplinary machinery it has the same purpose of seeking to ascertain all the relevant facts pertaining to the incident in question, as well as not assuming either the guilt or innocence of the defendant until all the material evidence has been submitted and the proceedings closed.

"The Division also holds that the engineer's testimony constituted such a basic and essential element in the fact finding process, that this testimony cannot be considered waived by the failure of the claimant, on his own initiative, to introduce it. The responsibility placed upon the carrier for insuring a fair and complete trial means that it must meet this responsibility without regard to the action or inaction of the claimant. This responsibility is particularly grave when the witness to be summoned is under the control of the carrier.

"The Division, therefore, concludes, without passing on the substantive facts surrounding the claim, that the carrier's failure to call the engineer to testify during the proceedings, in view of the fact that he possessed material information concerning the claimant's calling the signal properly, denied the claimant the fair and impartial trial to which he was contractually entitled."

First Division Award No. 8260 (Simmons)

"`. . . The hearing is conducted by and is under the control of the carrier. It is the carrier's duty to present at that hearing all material evidence of which it has knowledge bearing upon the question under investigation.' This includes evidence that tends to explain, justify or deny the charges. Trainmaster Mahoney, at the beginning of the hearing on June 10th, stated that it was not necessary on the carrier's part to `get up a lot of witnesses' and that he felt the conductor's report was `sufficient.' In this he erred. He should have called the other witnesses."

First Division Award No. 11820 (Edwards)

". . . In addition thereto, Fireman J. Illig and Flagman R. H. Swink, being members of the crew, should have been called to testify at the original hearing."

First Division Award No. 13633 (Thaxter)

"In the first place the hearing was held on a very short notice; a very feeble attempt was made to find out what happened; the engineer, conductor and foreman, all could have given valuable information but the hearing was concluded without their help. . . ."

First Division Award No. 14354 (Guthrie)

"Once again reference should be made to the trial record. Presumably the investigation and trial are for the purpose of determining the facts; not just a prosecution of the individual who is alleged to have violated a rule. In the instant case, there is no explanation of why the engineer on this engine was not called to give testimony, nor why the fireman who finally took the engine on the run was not called. Apart from the individuals actually involved in the disagreement, they would have been the individuals most likely to have relevant information bearing on the dispute."

First Division Award No. 14358 (Guthrie)

"In passing it may be asked why the engineer on this train, who was the only witness to the events apart from Bell and Whitbey, was not called to testify at the trial.

"Under the facts an affirmative award is justified."

First Division Award No. 16699 (Leedom)

"Management appears to have been selective in presenting evidence of blame-worthiness and not presenting that which might have tended to exonerate . . ."

Public Law Board No. 364, Award 156 (Coburn)

"In the instant case, the unidentified person who made the report to Mr. Clancy was clearly a material witness whose testimony would have had a direct bearing upon the crucial factual question of whether or not the claimant had complied with the operating rules by providing proper flag protection. It was, therefore, prejudicial error on the part of the Carrier not to have called him as a witness as requested by the Organization.

"AWARD: Claim sustained."

Third Division Award No. 29009 (Zamperini)

"The testimony of the Supervisor while sufficient to prove the Carrier had cause to charge the Claimant and conduct an Investigation, was not reliable to prove her guilty of the charges. It was hearsay evidence. The Organization is correct in its assertion that it was denied the right to cross examine the individual who had first hand knowledge of what occurred the night in question. This witness, an employee of the Carrier, was available and should have been called.

"If the witness had been called and his testimony withstood cross examination then it would have been up to the Claimant to refute the evidence presented. Her failure to do so would have settled the matter. Without the regular employees testimony, however, there was nothing for the Claimant to refute except hearsay evidence.

"Under the circumstances, this Board believes the Carrier has presented insufficient evidence that the Claimant was guilty as charged."

Fourth Division Award No. 4084 (Lieberman)

"The question of materiality of testimony has been dealt with by the courts on many occasions. The Federal courts have said that generally speaking any evidence is relevant and material which tends to prove or disprove any ultimate issue made by the pleadings, or to make the proposition at issue more or less probable, or which can throw any light on the transaction involved (155 S.W. 2d 624,625). Obviously the question of what is material evidence is the subject of interpretation and must be judged on a case by case basis. It is also beyond dispute that in investigations, which are not prosecutions or adversary proceedings, much greater latitude must be permitted and the individual being charged should not be unduly restricted in the calling of witnesses. Furthermore, the language of Rule 10 does not include the term 'material' in describing witnesses. It is well established that Boards such as this have no power to add to contracts and are limited to merely interpreting them in a reasonable manner.

"The initial response to the Claim in this dispute is perhaps the key to an understanding of Carrier's position. Superintendent Wetsel in denying the claim said: 'Mr. Kitchens did not appear as a witness for the company nor was he cited to the investigation'. In this Board's view (and we are sure Carrier will concur) Carrier does not have the unilateral right to determine who may appear at an investigation on behalf of the charged employee. If a yardmaster is called as a witness under this contract, must he be paid for his time as provided in Rule 10? On a prima facie basis, yes, regardless of whether he is called by Carrier or the Employee. The only condition, as this Board views it, is that if the Yardmaster called presents frivolous testimony or totally irrelevant material, Carrier may refuse to pay for his time, as an exception to the rule. However, the burden falls on Carrier, not the individual, to establish the basis for the exception.

"Applying this principle to the case at bar, the Board notes that Claimant's testimony was characterized as 'mitigating' in content. Carrier also characterizes it as 'not material'. No transcript having been provided, the Board can make no independent judgment with respect to Claimant's role at the investigation. It is significant to note, however, that mitigation is frequently an important element in ultimate decisions as to penalty for rule infractions. Based on the record before us, the absence of evidence that the testimony was either frivolous or irrelevant, and the clear language of the rule, the claim must be sustained.:

First Division Award No. 24296 (Muessig)

"With respect to the hearing itself, the Organization's fundamental position is that the Claimant was prejudged. It so asserts because the Carrier did not charge other crew members, namely the Conductor and Engineer. Perhaps most importantly, the Carrier did not have these two crew members testify at the hearing.

"The notion of a fair hearing requires that the Carrier summon to the hearing all witnesses which reason and logic dictate may have some relevant and material testimony or evidence to present. The primary purpose of a hearing for which the Carrier has the burden of conducting fairly, is to develop the facts and circumstances with respect to the issues that are raised by the charge, including those facts which favor as well a those which are adverse to the Claimant.

"In this case, there were two other employees whom may have been in a position to offer relevant testimony. Ironically, the Hearing Officer questioned the Claimant about his interaction with these two employees, but elected not to call them to testify. It is clear that they may have had some relevant knowledge of what occurred shortly before the rollout. For example, did the conductor apply hand brakes on Job 30? Did another Brakeman apply hand brakes? What was the Conductor's role prior to the incident under investigation? What did he and the Claimant discuss? Did the Claimant call the Engineer? While the Board has no way of determining whether these other employees would have contributed material evidence, the particular circumstances of this case lead us to find that the Claimant was not afforded a full, fair and impartial hearing.

"For the foregoing reasons, we find that the claim must be sustained. The Claimant is to be returned to duty with seniority and other rights unimparied (sic) and he is to be paid for all lost time, less a deduction for any outside earnings during the period that he was out of service."