AWARDS 62 - PREJUDICE HEARING OFFICER - PREDISPOSITION

Second Division Award No. 6225 (Dugan)

"We find that the hearing officer in this instance had prejudged Claimant's guilt so as not to afford claimant a fair and impartial hearing. This is clearly seen by the hearing officer's testimony, when asked a question by claimant's representative at the hearing, Mr. Ward, which question and answer are as follows:

"`Ward: Mr. Rhea, did you notify Mr. Rogers on the 24th that the door was missing on the subject car so he could issue a defect card just in case that the door was missing when it arrived from the PC? Did you wire or call him in regards to that or did anybody else at Flat Rock, do you recall?

"`Rhea: Mr. Rogers was charged with negligence in failing to perform his duty and he is a car inspector at Delta charged with inspecting these cars. I am not answering any policy of the DT&T Railroad. My statement to you and Mr. Rogers is that he failed in his job.' (Emphasis ours)

"We are of the opinion that the hearing officer in this instant dispute showed substantial bias toward claimant before the hearing was completed so as to prevent claimant from receiving a fair and impartial hearing. As was said in First Division Award No. 21046:

"`After studying the transcript of the investigation the Division is persuaded that petitioner's position is valid. At this late date there is little excuse for the managerial personnel of a carrier to ignore the principle that in a discipline case carrier is essentially, and must conduct itself like, a trial court. Among several things this means that the carrier official who conducts an investigation of a charge made by a carrier against an employe (1) should not normally have been involved in the occurrences leading up to the leveling of the charge and (2) should comport himself at the investigation, in his questioning of all witnesses (managerial as well as employe), in a truly objective and aloof manner, just as would an outside judge. If, as here, the evidence shows that the investigating officer did not so behave, then this Division, as a court of appeals, must find the trial court subject to procedural error and reversal.'"

Third Division Award No. 19914 (Blackwell)

"We have no doubt that Carrier has sole authority to say what its special instructions mean. We also have no doubt that discipline will not lie in the instant dispute if more than one interpretation can reasonably be drawn from the instructions. But this issue was not fairly tried. Since the central fact of the hearing involved the issue of whether claimant's interpretation was a reasonable one, and since Mr. Wilson was the author of the instructions in controversy, we think Mr. Wilson either should not have served as hearing officer, or should have taken testimony on the meaning of the instructions from another competent Carrier witness. He did neither and we conclude that claimant was thereby deprived of a fair and impartial hearing. Accordingly, we shall sustain the claim."

First Division Award No. 22349 (Weston)

"From the evidence, it is clear that Mr. Vaughan had concluded several days prior to the hearing that claimant was guilty and that he should admit this in the form of a written statement, thereby obviating the need for an investigation.

"These facts disqualified Mr. Vaughan as presiding officer of the investigation which followed, particularly since he had prejudged the case and entered testimony against claimant. They prevented claimant from receiving a fair and impartial hearing.

"For the above stated reasons, we find claimant was not afforded a fair and impartial investigation with Mr. Vaughan as the presiding officer and the discipline imposed must be set aside and the claim sustained. Awards of this Division in point here, are Nos. 8259, 8376, 10616, 11910, 15656, 16699, 19378, 19863, 19873, 20335 and 21398."

Fourth Division Award No. 3584 (O'Brien)

"It is clear from a thorough reading of the record that the Claimant was not afforded a fair and impartial investigation. Numerous awards on various Divisions of the Board, have held that a cornerstone of the due process requirement dictates that the one conducting the hearing must do so in a fair and unbiased manner. Mr. Cross failed to do so. While the hearing officer's overlapping of functions does not, per se, constitute procedural error, when this situation occurs the hearing officer must take special pains to isolate his roles and thus remain impartial. In the instant claim this was not done. The decision of Mr. Cross was not based on an objective evaluation of the evidence, but was biased by a pre-conceived judgment and prior decision concerning Claimant's responsibility of the charges brought against him. This was a substantial denial of Claimant's due process rights. We shall thus sustain the claim based thereon without addressing the merits of the claim. See Awards of the Second Division, No. 6158, No. 7119, and Fourth Division Awards No. 1951, No. 3065.

* * * *

"Claim sustained"

Fourth Division Award No. 2684 (Weston)

"Early in the hearing, the hearing officer stated:

"`Mr. Throckmorton, I have information that you failed to notify No. 92 to pick up in your Yard at approximately 4:15 P.M. December 31, 1969. Please state what you know of this incident.'

"At that point in the proceeding, no evidence had been introduced that Claimant had failed to notify No. 92 to make the pick up and the hearing officer's statement, based on information he had previously received, evidenced a preconception regarding the merits of the case that is incompatible with elementary principles of fair play. Even if we were to assume that this defect could be overlooked on the ground Claimant subsequently testified that he had failed to notify No. 92 of the pick up and therefore was not unduly prejudiced by the hearing officer's statement, the latter's following question cannot be similarly treated:

"`Mr. Throckmorton, is it not true that I contacted you at approximately 3:45 P.M., at which time you told me that you have a 29 pick-up lined for No. 92 and that your Car Inspectors were inspecting the train?'

"This question, which received a negative response, not only was in the nature of testimony but again made assumptions that were not based on the record and, more important, betrayed preconceptions as to material facts.

"Claimant did not receive the impartial hearing he was entitled to and his claim will be sustained."

Fourth Division Award No. 2634 (Weston)

"The transcript of hearing indicates that Superintendent Fraser, the hearing officer, had some predisposition in this case and served to some extent as a witness. Without his participation, the evidence in support of Carrier's charges against Claimant is not substantial or persuasive."

Fourth Division Award No. 4666 (Zusman)

"In the instant case the Trainmaster was personally involved in prejudging the Claimant's actions, in such a manner as to remove her from service. The probative evidence indicates that the Trainmaster dictated the charges against the Claimant which were then signed by another Carrier official. One charge involved the following of the Trainmaster's instructions. The Claimant and the Trainmaster gave differing versions to which conflicting testimony required a credibility determination. Not only was the Trainmaster the primary witness, but he also issued the assessed discipline. Nowhere does the Carrier deny that the Trainmaster was involved in the decision with the Hearing Officer, Mr. Benson. Such action indicates a process whereby the Trainmaster had a problem with the Claimant, accused and removed her from service, dictated the charges against her, was the primary witness disagreeing with her version of the facts and then signed the discipline against her in which at the least, prior to signing he `concurred' with the decision on the truth of his own testimony.

"This Board cannot find precedent to support a finding of guilt in these circumstances. The multiple roles of the Trainmaster substantially influenced the results, prejudicing the Claimant's rights. We also note other procedural inadequacies. Under the full weight of this record, we are forced to follow a long-standing record of Awards on this property (Public Law Board 2486, Award No. 2) and other properties, (Public Law Board 2719, Award No. 14; First Division Award 10616; Third Division Awards 21040, 20471 and Fourth Division Awards 2167, 3382) in sustaining the Claim on procedural grounds to the extent provided for in Article 22(d) of the parties' Agreement."

Second Division Award No. 5223 (Weston)

"The record does reveal defect, however, that are prejudicial and cause us concern. Before any hearing had been held, Brault notified the Union, by letter of May 19, 1964, that `I considered Mr. Orrick's offense of sufficient magnitude to remove him from service.' Since he had already arrived at that decision, Brault was not in a position, either as a matter of appearance or substance, to conduct the hearing of July 8, 1964, in the necessary impartial manner.

"During the course of the hearing, Brault further betrayed his predisposition when, although the introduction by evidence had not been completed, he assumed the veracity of investigators' statements that he had read into the record. Thus, at page 13 of the hearing transcript, after pointing out that those statements alleged that Claimant had taken the gas, he asked Claimant, `What use did you make of this amount of gasoline?' Again, on page 15 of that transcript, he made the same assumption of a critical fact in questioning Claimant.

"While we do not find merit in Petitioner's charge that Brault also served as a witness merely because he read statements into the record, we are of the opinion that he displayed substantial bias before the hearing was completed and seemed more a prosecutor than an official seeking impartially to obtain and assess the facts. 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.

"Claimant died on September 13, 1964. This fact does not affect our exclusive primary jurisdiction nor the right of Claimant's widow or estate to receive the amount due him. The purpose of the Railway Labor Act is fulfilled if the claim itself arises out of the employment relationship. See Pennsylvania Railroad Company v. Day, 360 U.S. 548, 552, 552; 79 S. Ct. 1322, 1324 (1959).

"In light of the defects mentioned above, the discipline in question cannot be upheld on the record developed in this case. We will sustain the claim to the extent that Claimant's widow or estate will be reimbursed for all wages, including any vacation benefits to which he would have been entitled if not suspended or discharged, that Claimant would have earned from the date of his suspension to the date of his death, less any wages he may have received during that period. In view of Awards 3883, 4532 and 4866, we will not require Carrier to pay the premiums for Health and Welfare, life insurance and other items mentioned in Part 2(b) of the claim."

Public Law Board No. 5150, Award No. 4 (Fletcher)

"In the case before this Board the Conducting Officer (a Trainmaster) was required to make credibility determinations between testimony offered by his son (the Crew Caller) and Claimant. And while it may be argued that such determinations were correct, fairly arrived at and were fully supported by other evidence, they nonetheless lack the appearance of impartiality.

"When the relationship between the Conducting Officer and the Crew Caller was established in the hearing record the Organization entered a protest against continuing further. At that point, fairness considerations would dictate that the Conducting Officer recuse himself from all further participation in the matter (or that a waiver be secured from the charged employee to continue). Neither obtained, accordingly, the entire process must be considered as flawed and a denial of the impartial investigation required by Rule 40.

"The Claim will be sustained on the basis that the investigation was flawed when the Conducting Officer did not recuse himself because his son was a witness in the hearing. The merits or other substantive matters of the dispute are not judged."

Public Law Board No. 5157, Award No. 6 (Fischbach)

". . . The Carrier erred when removing the Claimant from service pending the outcome of the investigation. Such precipitous action gave rise to the presumption that there was a compelling reason to find him guilty as charged. Adding credence to this presumption is the testimony of the General Manager, which points up his preconceived notion of the Claimant's guilt upon having discovered the services he rendered for pay on behalf of injured employees in litigation involving the Carrier. The General Manager stated unequivocally that he found this conduct to be `a definite conflict of interest between a Terminal employee and the company's rules.' (Investigation Transcript, p.8) Although it was this very officer who preferred the basic charge against the Claimant, he had already determined, by his own admission, that the accused violated Rules `M' and `P'. In the same vein, it is significant to note that the General Manager's revealing testimony was elicited in response to a question the hearing officer asked of this witness which was unduly suggestive of the answer to the core issue of the investigation. The manner in which this particular question was propounded also reflected a bias toward the Claimant on the part of the hearing officer.

"In light of the foregoing findings, the referenced display of prejudgmental determination irreparably impaired the Claimant's right to a fair and impartial hearing which is in integral component of the discipline rule - `the keystone of employee contractual protection.' Special Board of Adjustment No. 100, Award No. 408 (Seidenberg, 1987). Without reaching the merits of the case, the procedural irregularities mentioned herein provide sufficient grounds for vacating the Carrier's decision to discharge the Claimant. This disciplinary action shall now be set aside and expunged from his employment record. Further, the Carrier shall reinstate the Claimant to his position and service with pay for time lost, including the full restoration of his seniority and vacation rights and other entitled benefits. In computing lost pay, the Claimant, as a protected employee, shall be entitled to any and all quadweekly allowance's he would have otherwise received during the period of his discharge. Such payments shall be made retroactive to the date of termination up to the date of his reinstatement to duty."

Second Division Award No. 12682 (Wesman)

"A careful review of the transcript gives considerable support to the Organization’s remaining procedural objections, however. The Board concedes that it is not unusual for Carrier officers to serve in multiple capacities prior to, during, and following disciplinary investigations. Nevertheless, when they elect to do so, they assume a weighty responsibility to conduct themselves according to a high standard of fairness and objectivity. Carrier’s officer in this case utterly failed to adhere to that standard. As the Board noted in Second Division Award 6795:

"'Careful review of the transcript convinces us that the hearing officer did not function as an objective fact finder, but rather evinced a clear prejudgment of the Claimant’s guilt. This was evidenced by . . . direct assertions by the hearing officer regarding Claimant’s guilt.

"'. . . On this record we have both hearing officer prejudgment at the hearing and an improper overlapping of prosecutorial and judgmental roles, the net effect of which is to deprive claimant of a fair hearing. Carrier bears the serious responsibility of assuring an accused employe a fair and impartial hearing. This responsibility is ignored only at the peril that serious and prejudicial procedural defects may prove fatal to Carrier's substantive case.'

"In addition to asking grossly 'leading' questions of his own witnesses on direct examination (transcript, p. 9, Q. 76, for example), Carrier's Hearing Officer established beyond doubt his predisposition to Claimant's guilt on at least two occasions during the investigation--to wit:

"'Q. (Hearing Officer) Mr. Dickson, did your failure to make the proper connection of the leads on Traction Motor #3 on BN9911 on November 11, 1191 cause you to violate Burlington Northern General Rule 570?

"'A. (Claimant) No, it didn't.

"'Q. Mr. Dickson, how did your failure to make the proper connection of leads on Traction Motor #3 on BN9911 on November 11, 1991 allow you to comply with Burlington Northern General Rule 570?

"'A. By being alert and connecting up the leads the way they were disconnected, Mr. (Hearing Officer).' (Emphasis added.)

"Moreover, at the end of the Hearing, when Claimant initially declined to characterize the Investigation as a fair and impartial one, Carrier's Hearing Officer reframed and rephrased the question no less than five times in order to lure Claimant into a response more satisfactory to the Hearing Officer. Such semantic sleight of hand is to be condemned, and would not have been necessary had the Hearing in fact been properly conducted.

"In view of the clear procedural violations committed in the conduct of the Hearing, this Board has no choice but to sustain the claim as presented, without reaching the merits of the case."

Second Division Award No. 12629 (Muessig)

"The Carrier is required to conduct a fair and impartial hearing. This was not the case here. The hearing record is replete with examples of the investigating officer exceeding the bounds of propriety, even when deference is given to the great latitude that the investigating officer has in such matters. It is apparent that the focus of the investigation was to prove the charge against the Claimant, rather than serving as a vehicle for fact-finding. We note in this hearing that there were leading questions (that in many instances tended to intimidate), persistent questions on the same matters and issues when a desired response was not given, as well as a number of conclusionary statements by the conducting officer."