YARDMASTER DEPARTMENT AWARDS

INDEPENDENT CONSIDERATION AT EACH LEVEL OF APPEAL (29)

AWARD # REFEREE RAILROAD
Second Division Award 4536 Seidenberg Reading Company
Second Division Award 7032 Eischen Seaboard Coast Line
Second Division Award 7119 Eischen Southern Railway
Third Division Award 7021 Wyckoff Missouri Pacific
Third Division Award 8431 Daugherty Northern Pacific Terminal
Third Division Award 8810 Bakke Northern Pacific Terminal
Third Division Award 30601 Vaughn Conrail
Third Division Award 30759 Vaughn Delaware & Hudson
Fourth Division Award 1742 Weston Pittsburgh and Lake Erie
Fourth Division Award 1743 Weston Illinois Central Hospital
Fourth Division Award 2566 Weston Penn Central
Fourth Division Award 3746 McMurray Louisville and Nashville
Fourth Division Award 3747 McMurray Southern Railway
Fourth Division Award 3830 Sickles Southern Railway
Fourth Division Award 3831 Sickles Southern Railway
Fourth Division Award 4042 Lieberman Baltimore and Ohio
Public Law Board 2046, Case 3 Weston Term RR Assoc of St Louis

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."

Fourth Division Award No. 3746 (McMurray)

"At the outset, the Organization raises a substantial procedural objection occasioned by the fact that the person who signed the letter of discipline also responded to the second letter of appeal which was directed to him in accordance with his position in the management hierarchy. It views his letter of discipline as evidencing a prejudgment of guilt which denied the claimant of the independent consideration to which he was entitled under the appeals process.

"Rule 7(c) of the contract between the parties provided in explicit terms that the claimant shall have the right of appeal to each higher Carrier officer up to and including the Assistant Vice President-Personnel and Labor Relations. It is fundamental to the integrity of the appeal process that the decision maker give independent and non prejudicial consideration to the issue before him. Obviously that requirement cannot be met by the party who rendered the original judgment. This Board is constrained statutorily from any modification of the agreement and is bound to uphold the integrity of the process. Claimant's right of appeal was impaired by the Carrier's action and we have no alternative but to sustain the claim."

Fourth Division Award No. 3747 (McMurray)

"At the outset the Organization raises substantial procedural objections. The record reveals that Superintendent Hilton was the charging officer, hearing officer, decision officer, and finally an appeals officer. It views such multiplicity of roles as material and prejudicial to the right of fair trial and appeal which the contract requires. We agree. 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 the claimant the independent, non-prejudicial consideration required by the appeal process."

Fourth Division Award No. 1742 (Weston)

"Before this disciplinary action was taken, Claimant received a hearing under Rule 17 of the Agreement. Thereafter, on March 30, 1961, the Chief Engineer issued his decision that Claimant was being given a reprimand. The latter appealed the Chief Engineer's decision, one of the appellate steps being the Chief Engineer again. On May 19, 1961, the Chief Engineer sustained the decision of March 30, 1961, when the appeal arrived at his level.

"These circumstances satisfy us that Claimant has been deprived of a substantial right, his full right of appeal. The Chief Engineer had already judged the case and could not give it the independent and unbiased consideration contemplated by sound appellate machinery. We consider this defect sufficiently material, serious and prejudicial under the fact of this case to persuade us to sustain the claim. At the very minimum, an employe in Claimant's position attending a meeting on the property with his immediate supervisor's superior under the circumstances here present should have received his full right to have both guilt and penalty considered in an independent manner at each level of appeal. We do not consider this to be an onerous or unreasonable requirement. Unless it is observed, Rule 17 (C) and (g) are meaningless."

Fourth Division Award No. 1743 (Weston)

"Claimant was entitled under Rule 20 to have his case considered in an independent and unbiased manner by each appeals officer 'up to an including the highest officer designated by the Hospital Department to whom appeals may be made . . .' In this case the Hospital Administrator was the highest appeals officer designated and the record, particularly his statement introduced in evidence at the hearing, leaves no doubt but that he had already judged the matter and that an appeal to him would be meaningless. Claimant thereby was deprived of a major right and his case was prejudiced. We will sustain the claim. See Third Division Award 7021.

"In view of Claimant's demise, the relief sought in paragraph (b) of the claim will be limited to (1) clearance of Claimant's record and (2) back pay from May 4, 1961, to the date of death."

Fourth Division Award No. 2566 (Weston)

"There is no sound basis for disturbing Carrier's findings as to negligence but the record is not free of defect to the extent that it can validly support Claimant's discharge. After the hearing had been held and decision rendered, Claimant appealed to the first step in accordance with Rule 18(c) of the Agreement and Carrier's own schedule of the appellate steps to be followed. He never received a reply from that officer but instead Master Mechanic Papa of the Locomotive Department, who had already issued the dismissal decision, intervened and denied the appeal. This clearly deprived Claimant of the independent de novo consideration of his case that he was entitled to receive at each appellate level. Papa had no place in the case at the appellate stage."

Third Division Award No. 8431 (Daugherty)

". . . But the Organization's contention of denial of Claimant's right of appeal to `the next higher officer' must be upheld. It does not avail to argue that thirty years of uncontested past practice and several cases of self-reversal on appeal permits Rule 22(c) to be interpreted so that the highest official of the Carrier on labor grievances can make the original decisions and then pass judgment on appeal therefrom. The plain meaning of the language of Rule 22(c), as well as the intent of the Railway Labor Act, is that in a case like this a first decision on a claim or grievance by a lower Carrier representative or official may be appealed to one or more higher, different officers, including the top or final decision-maker. Accordingly, in this respect (and in this respect only) the Carrier's behavior in this case must be judged to have been arbitrary and unreasonable."

Third Division Award No. 8810 (Bakke)

"It might be well to quote the decisive language of Award 8431:

"`* * * (8) But the Organization's contention of denial of Claimant's right of appeal to "the next higher officer" must be upheld. It does not avail to argue that thirty years of uncontested past practice and several cases of self-reversal on appeal permits Rule 22(c) to be interpreted so that the highest official of the Carrier on labor grievances can make the original decisions and then pass judgment on appeal therefrom. The plain meaning of the language of Rule 22(c), as well as the intent of the Railway Labor Act, is that in a case like this a first decision on a claim or grievance by a lower Carrier representative or official may be appealed to one or more higher, different officers, including the top or final decision-maker. Accordingly, in this respect (and in this respect only) the Carrier's behavior in this case must be judged to have been arbitrary and unreasonable.'"

Second Division Award No. 4536 (Seidenberg)

"The Division finds that a course of conduct such as revealed by the facts of this case vitiates the protection inherent in the contractual guarantee for a fair trial. The basic concept of fairness is nullified when the same official is complaining officer, judge, witness and jury. The defect in the proceedings is not cured even if the official personally was not arbitrary in his conduct at the investigation."

Second Division Award No. 7032 (Eischen)

"It appears that Claimant may not have been faultless in failing to comply with a regulation of Carrier. On the other hand, there is some evidence of record to suggest that the rule was not promulgated officially nor enforced in a non-discriminatory manner. The general principle in these cases is that an employee is required to obey directions of management unless they present a danger to his health or welfare and to file a grievance if he believes the order unreasonable or violative of his collective bargaining agreement. 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."

Third Division Award No. 7021 (Wyckoff)

". . . The language of the parties' Agreement provides for two appeal steps. It assures the employe who is being disciplined `a fair and impartial hearing before the next higher officer'. The Carrier cannot unilaterally deny the employe independent consideration and decision at each successive appellate step without vitiating the whole purpose and intent of Rule 22. . ."

Second Division Award No. 7119 (Eischen)

"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 some minor overlapping of roles, while not to be encouraged, is not prima facie evidence without more of prejudicial procedural imperfections; that the greater merging of roles the more compelling the influence of prejudgment or prejudice and, that each such case must turn on its own merits. In the instant case we find that H. W. Sanders did not actually testify against Claimant in the hearing but that is literally the only function he did not fulfill in this matter. He activated the investigation, preferred the charges, held the hearing, reviewed the record, assessed the discipline, and denied the appeal. In so doing he fulfilled roles of investigator, prosecutor, trial judge and appellate judge. The disinterested development of evidence, the unbiased review thereof and the objective assessment of appropriate penalty inherent in concepts of fair and impartial discipline cannot be accomplished with such egregious overlapping of functions. This was not a mere technicality but a substantial denial of Claimant's rights. We are left with no alternative but to sustain the claim. See Awards 4536, 6329, 6439, 6795 and 7032."

Public Law Board No. 2046, Case No. 3 (Weston)

"Carrier's appeals officer at the second step was the same man who signed the suspension decision and letter of denial at the first step, albeit in behalf of Terminal Superintendent Stublefield who was absent due to illness. Claimant was entitled to independent review of his claim at each appellate level and Carrier should have used an officer at the second step who had nothing to do with the decision or first stage of the grievance procedure. See Fourth Division Awards 1742, 1743 and 2566."

Fourth Division Award No. 3830 (Sickles)

"In our effort to resolve this dispute and to be responsive to the contentions and assertions of both sides, we have again reviewed all of the cited authority. While it may very well be that the author of Second Division Award 7119 found no prima facie evidence of a violation concerning some minor overlapping of roles, he held that the greater the merging of roles, the more compelling the influence of pre-judgment or prejudice. In the case there under review, he found that the same individual - although he did not actually testify against the Claimant at the hearing - activated the investigation, preferred the charges, held the hearing, reviewed the record, assessed the discipline, and denied the appeal. Such overlapping was not considered to be a mere technicality, but was held to be a substantial denial of the Claimant's rights.

"While Fourth Division Award 3746 is of interest as a precedential matter, Fourth Division Award 3747 takes on added significance when we recognize that said Award resolved a dispute between the same parties. There, the Superintendent was the Charging Officer, the Hearing Officer, the Decision Officer and an Appeals Officer. The Award held:

"`It views such multiplicity of roles as material and prejudicial to the right of fair trial and appeal which the contract requires. We agree. 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 the Claimant the independent, non-prejudicial consideration required by the appeal process.'

"Thereafter, the author of Fourth Division Award 3747 cited, with favor, the pertinent portions of Second Division Award 7119.

"Second Division Awards 8367 and 8412, relied upon by the Carrier, stressed the need to show that the multiplicity of roles resulted in a procedural impediment to the Claimant's rights; rather than focusing on a question of concepts of `fair and impartial discipline. . .' which `. . . cannot be accomplished with such egregious overlapping of functions', as denounced in Second Division Award 7119.

"But, be that as it may, we find it totally unnecessary for us to resolve the apparent conflicts between the Awards.

"It has long been held that resolutions of disputes between the same parties concerning the same basic issues should not be disturbed by a subsequent Referee, or Arbitrator, in this or in other industries, unless the second Referee or Arbitrator determines that the initial Award was palpably erroneous. That rule continues to apply even if the second Referee or Arbitrator might have decided the case differently had he heard the dispute in the first instance. The basis for those Awards which uphold that doctrine of res judicata is apparent when one recognizes that a predictability of Awards between the same parties tends to facilitate an orderly processing and resolution of labor disputes.

"Second Division Awards 8367 and 8412 did not resolve disputes between these parties, whereas Second Division Award 7119 concerned this Carrier and Fourth Division Award 3747 resolved a dispute between these parties.

"Accordingly, under the long established precepts of this Board, we have no alternative but to sustain the claim."

Fourth Division Award No. 3831 (Sickles)

"Although the record in this dispute is not identical to that in Award 3830, the same basic contention has been raised concerning the multiplicity of roles played by a Carrier Official. No purpose is served by a detailed exploration of the record in this case. Suffice it to say that our basic rationale and determination as set forth in Award 3830 is equally applicable here, and we find, under the doctrine of res judicata, that Fourth Division Award 3747 compels us to sustain this claim."

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.

* * *

"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."

Third Division Award No. 30759 (Vaughn)

"However, it is basic to the due process and usual manner of handling claims on the property which is required under the Act that claimants who have been the subject of discipline receive independent review of their claims. That right is violated when the same person assesses the discipline and then reviews his decision on appeal. Numerous Awards of this Board have so held. See, e.g., Third Division Awards 28567, 25361, 24547, 24476, 23427, 17314, 14031, 9832, 8431 and 7021. Award 24476 is particularly instructive of the Board's concern:

'The independent review and decision at each successive appellate level, whether it is two or three step appeals process, is plainly lacking when the same person judges the discipline he initially assessed. It is a contradiction in terms, which nullifies the hierarchical review process.'

"Of the Carrier's argument that Rule 28-2 required Mr. Waver's participation as the reviewing officer because he is the highest designated official, the Board is not persuaded. The Carrier could have had the assessment of the discipline made by another officer or, at the least, having used Mr. Waver to assess the discipline determined, could have excused him from the appeal process. It was the Carrier's obligation to make determinations concerning assignments of decisional and appellate responsibilities so as to avoid violating Claimant's right of independent review. It clearly failed to do so and thereby violated Claimant's rights in that regard."


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Last modified: April 29, 2005