HEARSAY EVIDENCE OR EVIDENCE TAKEN AFTER HEARING (24)

Fourth Division Award No. 3033 (O'Brien) 

"Finally, the Association protests that Carrier allowed the introduction of hearsay evidence at the Hearing. We agree with the Association in this regard. The statements of Mr. and Mrs. Owens as well as that of Mr. Scofield should have been excluded since they were not present at the Hearing thereby depriving claimant of the opportunity to cross-examine them. In ascertaining whether there was substantive evidence adduced at the Hearing to uphold the charge, this Board will give no weight at all to these statements."

Third Division Award No. 19591 (Blackwell)

"The irregularity in the appeal is even more serious. On August 5, 1970, several days after the July 27 hearing had closed and, one day before Carrier's letter of dismissal on August 6, Carrier initiated further inquiries concerning some of the facts on which evidence was taken in the hearing. On the night of August 5 Storekeeper A. C. Petersen questioned an employee whose letter of complaint about poor conditions in servicing cabooses had been entered into the hearing record. In Mr. Petersen's presence another Carrier official asked questions about the letter and then Mr. Petersen asked if the employee `had anything against' the claimant. Mr. Petersen was one of the officers in the line of appeal of this case and he participated in these inquiries before he had heard the appeal.

"The full import of the August 5 inquiries became apparent during the appeal of the claim on the property. In a letter declining the appeal, dated January 13, 1971, Mr. E. L. Cochran stated in pertinent part:

"A further check on August 5 and 6, with Assistant Terminal Superintendents T. L. Watts and P. D. Hare, who are in charge of the Kansas City Yard the second and third shifts, had their assurance that it was not possible, and they did not on the day in question pull the cabooses at 5:15 P.M., nor was Mr. Williams requested to service these six cabooses in the yard, as he testified on page 16 of the transcript. Also, Mr. Watts and Mr. Hare said they had never requested caboose supply men to service cabooses on moving trains, nor had they ever used foul language to these employes. Mr. M. S. Bowers, Road Foreman of Engines, also denied that he had requested the six cabooses be serviced in the yard the night of July 16th.

"`A check of records in the General Car Foreman's Office revealed that Caboose UP-25242 was placed on a train at 7:25 P.M., and the train departed 7:50 P.M., July 16; Caboose UP-25610 was placed on a train 7:30 P.M., departed 8:40 P.M. July 16th; Caboose NW-562812 was placed on a train 8:30 P.M. departed 9:25 P.M. July 16th; Caboose UP-25265 was placed on a train 9:00 P.M., departed 9:55 P.M., July 16th; Caboose UP-25442 was placed on a train 4:35 A.M., departed 5:40 A.M., July 17th; Caboose UP-25503 was placed on a train 1:30 A.M., departed 1:50 A.M., July 17th. Head Watchman R. L. Hill was notified these cabooses were still on the caboose servicing track at 5:55 P.M. on July 16, 1970.

"`It is obvious from the foregoing that Mr. Williams falsified his caboose report forms on the evening of July 16, 1970, and that the charges against him were sustained.

"`Would also advise you that with reference to page 19 of the transcript where Mr. Williams stated that he advised Mr. Petersen, both verbally and written, that he was supplying cabooses without proper protection, having reference to blue flag protection out in the yard, Mr. Petersen has never received such information, either verbally or in writing.

"`With regard to Mr. Williams contention on page 19 that men come down and knock the switch lock off with a knuckle pin to let the engine out, check revealed that in the past five years only one Stores Department padlock was issued as a replacement at the caboose track. The lock replaced was later found in a mud puddle some distance from the switch stand. It was not broken and there was no evidence of it being knocked off with a knuckle pin.' ....

"The foregoing brings into the appeal record statements from four witnesses (Watts, Hare, Bowers and Petersen) who did not testify in the July 27, 1970 hearing. Yet their statements bear directly on the factual issues raised at the hearing. Not having been subjected to claimant's rights of cross examination at the hearing, these statements should not have been considered by Carrier in determining claimant's appeal. Obviously the statements were considered."

Fourth Division Award No. 3701 (Carter)

"The Carrier offered no evidence in the investigation concerning the Birmingham, Alabama, call. The only evidence offered by the Carrier concerning the Murfreesboro, Tennessee, calls was a letter addressed to Carrier's Special Agent, by an official of the telephone company, to the effect that he had contacted a woman at the Murfreesboro telephone number who advised him that she had been called by claimant on the dates involved. Claimant denied knowing anyone in Murfreesboro. Many awards of different Divisions of the National Railroad Adjustment Board have upheld the admissibility of written statements in investigations without the writer being present. In this case, however, there is no written statement from the woman in Murfreesboro who was supposed to have received the calls from claimant. This `evidence' offered by the Carrier was too far removed from its origin to be given serious consideration. The Board finds that the Carrier failed in its proof so far as the Murfreesboro, Tennessee, and Birmingham, Alabama, calls were concerned."

Fourth Division Award No. 2637 (Weston)

"We have not referred to or considered Coughlin's or Partin's statements because the latter was not made until after Claimant was disqualified and neither was made in the presence of Claimant or his representative. While there is no requirement that a hearing be held, elementary principles of due process and fairplay prescribe that an employe be given the right to confront and cross-examine his accusers. This defect did not prejudice Claimant's case, however, in view of his own admissions."

Third Division Award No. 29030 (Sickles)

"To be sure, the Carrier attempted to provide various missing evidentiary ingredients after the Hearing and the termination. For instance, in its correspondence, and by attachments thereto, it attempted to show that the Nurse's hours were from 6:30 AM to 3:00 PM, but that the Nurse was to remain until 5:00 PM to accommodate the Claimant on the day in question. Even if that assertion is now admissible (in some after the Investigation fashion), there is no evidence that any such information was ever delivered to the Claimant. Moreover, the Carrier has attempted to show that the EAP office is located in the building where the Claimant worked and that the dispensary was only about 1 mile away from that location. Further, it presented certain Health Record notes which tended to show that the EAP Counselor called the Nurse at 3:45 PM to advise that the Claimant was `on his way.' On the property, the Organization objected to the receipt and consideration of this post Hearing `information.'

"Of course, had the information been submitted at the Hearing and it had remained essentially unrebutted by the Claimant, then the basis for certain valid inferences might have been present. But, this Board cannot permit either party to present a minimum of information at a Hearing, and then supplement it some four months later, after the opposing party has given its testimony at the Hearing. Such a procedure would effectively preclude an accused employee from intelligently defending himself because he would have no inkling of what information might be supplied at a later time, long after his opportunity to present contrary evidence and testimony had expired and/or evaporated.

"It should also be noted that the Nurse had very little information to supply since she never spoke to the Claimant. The Supervisor gave the directive, and was aware of time frames, yet she was never called as a witness to provide the basic ingredients, nor was the EAP Counselor who could testify as to the time the Claimant left his office.

"We have no desire to condone the failure to obey a direct order, nor do we seek to assist an employee who deliberately evades an obligation to undergo testing under a waiver agreement. At the same time, we must insist that the Carrier sustain its burden by direct and admissible evidence at the Hearing, not by ex parte information submitted four months thereafter.

"In view of the foregoing, the Claim is sustained to the extent that the Claimant shall be restored to service with seniority and all other rights unimpaired. He shall be compensated for all time lost, less the amount he earned while out of service in accordance with Rule 24(h)."