RIGHT TO FACE ACCUSER (81)

First Division Award No. 14987 (Mabry)

"Claimant and his representative were not permitted to `hear' the testimony of, and interrogate, the one principal witness against him. This proceeding did not vaguely approach that `fair and impartial hearing' contemplated. And, it need not be said that the carrier purposely violated the rule in order to `get' an employe whose record might not have been too good in the eyes of the management. It is enough to say that however good the motive of carrier and however great the provocation presented, fundamentals of a rule so important to the claimant and his security as an employe cannot be so lightly by-passed, whatever the occasion otherwise demands.

"Conceding, for the sake of argument, that the presence of the complaining witness, passenger Harvey, could have been obtained at no other time but on this short notice, yet that fact does not justify doing such violence to a rule of this importance. It is much better that a case of the most clearly desirable discipline fail for want of proof than that it rest upon such a hearing as was here attempted."

First Division Award No. 14469 (Simmons)

"There is a distinct difference in the position of a witness and one accused of an offense. A witness is there to tell the truth. That is the prime purpose. One accused is also there to tell the truth, but he is also concerned with other witnesses telling the truth and with the `full investigation' the rule provides. He has the right as a party (as distinguished from a witness) to cross-examine witnesses, to develop additional facts and to test credibility; he has the right to direct the investigation to his particular responsibility, and to produce witnesses in his own behalf, etc. The procedure which the carrier asks us to approve would run around all of these rights under the rule which a full investigation of offenses charged accords an accused employe."

First Division Award No. 15508 (Coffey)

"That record leaves no room for doubt that claimant did not enjoy the inalienable right to have the charge proven at a fair and impartial hearing as the rules imply. One glaring deficiency is that he was not afforded the opportunity to cross examine all witnesses whose testimony the carrier used against him. . . .

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"The guilt of the accused not having been established at a fair and impartial hearing the disciplinary action has not been sustained and is without proper support before the Division."

First Division Award No. 16699 (Leedom)

". . . Nor does this record reveal that the hearing conducted by the carrier was free of prejudice to claimants.

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"(3) Claimants were not given a chance to face and cross-examine all who testified against them. This was a substantial deprivation as to those witnesses who made affidavits as to the nature of the fire in the journal box."

Also see First Division Awards 5197, 5301, 5522, 8261, 11601, 12379 and 13576.