AWARDS 61 - WITNESS MEET WITH HEARING OFFICER PRIOR TO HEARING

Public Law Board No. 2486, Award 2 (Eischen)

"Terminal Trainmaster Rhoden's various roles in the instant case commenced with his preliminary investigation of the incident occurring between Claimant and Assistant Trainmaster D. R. Allender, on November 8, 1978. At that time Mr. Rhoden was called by Mr. Allender because, the latter claimed, `he had been struck by Mr. Mallory'. Subsequent to discussion with the two men, Mr. Rhoden issued the Notice of Hearing and Investigation (supra). There is evidence on the record that prior to the actual hearing Mr. Rhoden held discussions on the issue and evidence to be presented with Mr. K. L. Carius, the presiding hearing officer. At the hearing, Mr. Rhoden testified as a Carrier witness against Claimant. Finally, Mr. Rhoden, by letter of December 8, 1978, notified Claimant of his (i.e., Rhoden's) decision based on the hearing to dismiss Claimant. Probative record evidence establishes that prior to the hearing, Mr. Rhoden had already decided the `facts' of the case against Claimant."

Fourth Division Award No. 2158 (Seidenberg)

"When the Division reviews the total record, it must conclude that the procedural objections interposed by the Organization concerning the presence of the presiding officer at the preliminary meeting on May 25, 1965, are well taken. Without making any judgments on the other aspects of the May 28, 1965 hearing, the Division finds that attendance of the presiding officer at a prior meeting at which all the prosecuting witnesses were present, so tainted the subsequent investigation, that it must be held to be violative of Rule 13 which purports to afford the Claimant a fair and impartial hearing. The presiding officer cannot have any adversary role at an investigation hearing. He is obligated to seek out all the facts surrounding the incident in question, those which favor as well as those which militate against the Claimant. He is a trier of fact and an ascertainer of the truth. Consequently, for him to attend a preliminary meeting at which all the Carrier witnesses are present and the case under consideration is discussed is violative of Rule 13. It matters not that the presiding officer, himself, did not participate in such discussion. His mere presence there is incompatible with the role of a hearing officer seeking to find all the material facts of the incident in question.

"While it has been stated in many awards of this Division, that carrier disciplinary proceedings will not be held to the exact standards of a commonlaw trial proceeding, nevertheless, it has also been stated with the same degree of frequency that the basic concept of fairness and due process must underly (sic) and be complied with in these same disciplinary proceedings. On the basis of the record before it, the Division must hold that the principles of procedural due process were materially breached by the meeting prior to the May 28, 1965 investigation and the discipline imposed as a result of the May 28 investigation must fall."

First Division Award No. 20168 (Seidenberg)

"The conferring by the hearing officer with the prosecuting witness prior to the start of the hearing, coupled with his statements, made in the course of the hearing, to which the petitioner made timely objections, that the prosecuting witness was and the claimant Engineer was not telling the truth, clearly transcend the judicial proprieties and violate the standard of conduct, required of a hearing officer, presiding at an investigation called for the purpose of ascertaining all the facts, favorable as well as adverse, to the claimants.

"Such conduct is not a slight irregularity, as the carrier maintains, but is a substantial breach, not only of the pertinent rule, but also of the commonly accepted standards of procedural due process."