YARDMASTER DEPARTMENT AWARDS

PREJUDGMENT (26)

AWARD # REFEREE RAILROAD
Fourth Division Award 4057 Larney Conrail
Public Law Board 2287, Awd 5 Eischen Conrail
Public Law Board 2287, Awd 6 Eischen Conrail
Public Law Board 4447, Awd 4 Fredenberger Chicago and North Western
Special Board 1044, Awd 32 Euker Conrail

Fourth Division Award No. 4057 (Larney) 

"Our review of the entire record evidence leads us to conclude the Organization's allegations with respect to the denial of Claimant's due process rights, as a result of the wording of the charge, and the Hearing Officer's conduct of the investigation have merit and must prevail. We are appalled at the manner in which McGraw presided over the hearing and we find the wording of the charges in the Notice issued to Claimant to constitute a prejudgment of guilt especially when compared to the wording of the charges involving the very same incident which was issued to employe Andrews. We suspect from our reading of the investigation transcript that Claimant was not altogether free of responsibility for the resultant subject accident, yet we must give greater consideration to the protection of his due process rights. To this end, we rule to sustain that portion of the claim covering payment for the five (5) days lost as a result of the suspension and that his record be cleared of this discipline."

Public Law Board No. 2287, Award 5 (Eischen)

"Finally, the Organization protests that the hearing was not conducted in a fair and impartial manner. Specifically, it is asserted that the wording of the charge indicates a prejudgment of guilt on the part of the Carrier and that the subsequent conduct of the hearing by Hearing Officer N. E. McGraw substantiated Carrier's predisposition. We agree with the Organization that the wording of the charge suggests a possible prejudgment on the part of the Carrier. Yet, in the face of a fairly conducted hearing, such wording would not be a fatal procedural defect. In the instant case, however, the hearing was not carried on in a fair and impartial manner.

"Early on in the hearing the Organization requested sequestration of witnesses. This request was refused despite the Organization's protest, citing the `Manual for Supervisors in Handling Hearings and Investigations', which suggests that sequestering should be the rule, rather than the exception unless the employe or his representative request otherwise (TP-8). Shortly thereafter (TP-10), the Hearing Officer interrupted a question by Claimant's representative dealing with Carrier's apparent prejudgment of the accused. The Organization again cited the Manual for Supervisors, quoting `the framing of questions so as to assume the fact; or statements by the officer conducting the proceeding which might be construed as prejudgment, should be avoided.' The Hearing Officer overruled the Organization's objection and instructed the witness not to answer the question put to him.

"In view of this hearing conduct, coupled with the prejudicial wording of the charge leveled against Claimant, we find that Claimant was not afforded a fair and impartial hearing. Accordingly, the claim is sustained on that procedural basis, with no ruling made or implied upon the merits.

"AWARD Claim sustained."

Public Law Board No. 2287, Award 6 (Eischen)

"As a consequence of this event, Carrier notified Claimant to attend a hearing in connection with:

"Your violation of Rule 400N-7, Rules for Conducting Transportation whereas you failed to protect off-track crane set up on tracks No. 1 and 2, Departure Yard, rerailing car in track No. 32, WBC, which resulted in damage to crane during your tour of duty as Yardmaster, Train Yard, between 11:55 AM and 4:00 PM on December 12, 1978.

"In our recent Award No. 5 (Case No. 5) we sustained the claim of Mr. Carr and reversed the discipline because he was not afforded a fair and impartial investigation as required by Rule 6-A-1. Claimant Pegg was found guilty by Carrier in the same tainted proceeding. Accordingly, and for the same reasons, the present claim also is sustained.

"AWARD Claim sustained."

Public Law Board No. 4447, Award 4 (Fredenberger)

"The Organization maintains that the Carrier denied Claimant a fair and impartial investigation because it prejudged his guilt. In support of that allegation the Organization points to testimony by Claimant's mother that on April 21, 1987 she was informed by telephone by her husband, who is a Carrier official, that he had been told by Vice President and Division Manager J. H. Koch that Claimant would be taken out of service and discharged for use of marijuana. Claimant's wife also testified at the investigation that she overheard a telephone conversation apparently between Claimant and his father in which the father stated substantially the same thing to Claimant as he had stated to Claimant's mother. Claimant confirmed the substance of the latter conversation. No other witnesses who testified at the investigation controverted Claimant's testimony or that of his wife or mother with respect to this point.

"By letter of August 13, 1987 Vice President Koch denied that he had any conversation with Claimant's father of the nature testified to by Claimant, his wife and mother and enclosed a handwritten letter to Koch purportedly from Claimant's father dated July 17, 1987 stating that within the previous five years there had been no conversation or discussion between Koch and Claimant's father concerning Claimant's employment. Vice President Koch did state in his letter that at the time Claimant was removed from service Koch had instructed a staff member to inform Claimant's father of that fact in order to minimize embarrassment to him.

"Claimant's testimony and that of his mother and his wife stands unrefuted. In the face of that testimony the hearing officer should have called either Claimant's father or Vice President Koch or both as witnesses to testify with respect to the alleged conversation. The Carrier may not be permitted to change the record subsequent to close of the investigation by self-serving denials from Vice President Koch buttressed by a letter purportedly from Claimant's father which Koch was in a position to obtain through duress. Neither Claimant nor his representative had any opportunity to cross examine Vice President Koch or Claimant's father with respect to this issue.

"Accordingly, we must conclude that the Organization's point is well taken that the Carrier prejudged Claimant's guilt. We understand that the Carrier would be tempted to do so in the face of the results of Claimant's urinalysis. However, it is fundamental to the investigative process in the railroad industry that the Carrier refrain from reaching conclusions with respect to quilt until all relevant evidence is adduced by the investigation. Apparently, the Carrier failed to observe the rule in this case."

Special Board of Adjustment No. 1044, Award No. 32 (Euker)

"The Organization asserts Claimant was prejudged because of the wording in the charge. We agree with the Organization the charge was inartfully drawn in that it failed to include the word 'alleged', giving one the impression the decision was a fait accompli. The purpose of the trial is to determine whether Claimant is guilty of the charge. If the charge presupposes the guilt, there is nothing left to decide. Unfortunately, the prepared preliminary statement read by the conducting officer at the commencement of the trial is so ambiguous, it does little to relieve a charged employee's anxiety concerning the fairness of the hearing that will follow."


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Last modified: April 29, 2005