The Second Division consisted of the regular members and in
addition Referee Harold M. Weston when award was rendered.
SYSTEM FEDERATION NO. 99, RAILWAY EMPLOYES'
DEPARTMENT, AFL-CIO (Electrical Workers)
FINDINGS: The Second Division of the Adjustment Board, upon the whole record and all the evidence, finds that:
The carrier or carriers and the employe or employes involved in this dispute are respectively carrier and employe within the meaning of the Railway Labor Act as approved June 21, 1934.
This Division of the Adjustment Board has jurisdiction over the dispute involved herein.
Claimant, a section lineman, was suspended from service on May 15, 1964, pending an investigation of charges that he had misused company gasoline by having it placed in his own automobile. After a hearing had been held in the matter, Carrier found the charges substantiated by the evidence and on July 14, 1964, dismissed Claimant from its service.
Carrier maintains that the claim is barred since it was not filed within the sixty day period prescribed by Article V of the August 21, 1954, Agreement. The difficulty with this point is that Carrier's representatives did not even mention any time -I17 t objection when they first replied to, and declined, the claim on the property'The objection was not raised until considerably later when the claim reached a higher grievance appeals level. It therefore was untimely and must be deemed waived,)
Petitioner contends that the suspension and dismissal must be set aside because the same Carrier official, Division Engineer Brault, levelled the charges against Claimant, served as both hearing officer and witness and imposed the discipline. It also alleges that Brault prejudged the case.
There is no valid objection to having a hearing officer hand down the decision after the hearing has been held. On the contrary, this is the desirable procedure for the hearing officer is the official who has had the opportunity to observe the demeanor of the witnesses and to hear what they have to say. While it would be well to avoid having the same official make the charges and act as hearing officer, we are not disposed to find that that combination of roles, standing alone, constitutes reversible error.
The record does reveal defect, however, that are prejudicial and cause us concern:l Before any hearing had been held, Brault notified the Union, by letter o'P 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 predispositionnwhen, 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 BrajyU also served as a witness Merely because he read statements into the recordLwe are of the
opinion that, ",he displayed substantial bias before the hearing was completed ~_,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 the light of the defects mentioned above, the discipline in question cannot-be upheld on the record developed in this case will sustain the claim to the extent that Claimant's widow or estate will 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.