'rr,~ 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 6366


        The Second Division consisted of the regular members and in addition Referee Irving R. Shapiro when award was rendered.


                ( System Federation No. 105, Railway Employes'

                ( Department, A. F. of L. - C. I. O.

E'art.ies to_...U is~r.ite: ( (Boilermakers)

                ( Union I'ac;ific Railroad Company


lii_F:pqte:. !,Claim of _Cmployes^

            1,. That the Union Pacific Railroad dealt unjustly, unfairly, and capriciously, with Boilermaker Norman If. Sales, Omaha, Nebraska Shops, when it removed Boilermaker Sales from the service of th.p Carrier at the close of business February 25, 1971.


            ?, That nrcordingly the t'nion Pacific- Rail.rond rpstnrc IRnilcrmpkpr hoi-rnan fl. ;~'~ Le;~, to hit: Courmer arid right position wit1; all r-iht-,U arid benefits unimpaired, including fringe benefits, hospital and Travelers Ir*urance iienefits; and


            The Union Pacific Railroad pay Norman 11. Sales eight (8) hours art pro rata rate of his position for February 26, 1971, and for each work day thexpafter until. he is properly restored to service and violation corrected; and


            4, In cadditton to the money amounts claimed herein, .the Carrier shall pay Norman 11. Splec an additional amount of 6r per annum compounded annual ty tin the anniversary date of claim.


Fi nd_in$g

 The Second Division of 1-ho Adjustment Roard, upon the whole record and all the Evidence, finds that:

 7'hv carrier or carriers and the employe or employes involved in4his disprste ave resprctively carrier and emplove within the meaning of the Railway ktliol- let: as aprrovi·d Jrtnv '?1, 10;14.
This Division of the Adjustment Board has jurisdiction. over the dispute involved herein.

        Parties to said dispute waived right of appearance at hearing thereon.

Form 1 Award No. 6366
 Page 2 Docket No. 6200
 2-UP-BM-'72

 Claimant, a boilermaker. at Carrier's Omaha, Nebraska shops, failed to report for work at the scheduled starting time of his shift on February 12, 1971. lie appeared four and one half hours later, checked in with his foreman and was assigned work and he worked the entire second half of his scheduled shift. He was subsequently charged with having violated Rule 702 of the Carrier's "Rules and Instructions of the Motive Power and Machinery Department", pertinent parts of which read:

        " 702. Employees must attend to their duties during the hours prescribed...They must not absent themselves from duty... Without proper authority..."


Following a hearing on the property, Claimant was removed from service on February 25, 1971. He grieved and his claims were duly processed and appealed.

 'The basic thrust of Petitioner's contention in support of the claim is that Carrier failed to comply with Rule 37 of the Controlling Agreement in that the notice of hepring initiating Carrier's action did not, meet the requirements of the Rule and that the hearing itself was not a fair and ipartial one and therefore, the claim should be sustained in full.

        The pertinent provisions of Rule 37 read:


        "No Employe shall be disciplined without a fair hearing by a designated officer of the Carxier...At a reasonable time

        prior to the hearing, such employe and his duly authorized --

        representative will be apprised of the `precise charge-..."


It is unnecessary to dwell at length on.the complaint concerning the notice of hearing. It set forth a precise charge. The Claimant and his representatives were not misled by it and they addressed themselves to it. It is the very purpose of the hearing to ascertain the validity and propriety of the charge and whether there is substantial evidence that the allegations set forth' 'in the notice are indeed factual and sufficient to warrant the penalties, subsequently imposed.

 Petitioner's assertion of procedural defect in that the Carrier,official who conducted the hearing prepared the charges, acted as prosecutor, and meted out the punishment arouses our concern. We are not unmindful of the limitations which may exist in facilitating the obligations of Rule 37. It is not always possible for lower escelon supervision to draft the charges in a precise and expository manner so as to satisfy that facet of the Rule. A person more experienced and knowledgeable in these matters, at the facility, may have to draw up the necessary document based upon information supplied to him. The rule requires that the hearing be prompt and to accomplish this the Carrier usually designates an official on the property to conduct it. Having heard the evidence, observed the witnesses and studied the documents, it is most appropriate for the hearing officer to make the initial determination. In recognition of the practicalities in fulfilling the objectives of this aspect of the Rule, we have held that the complained of process is not in and of. itself violative of the rights accorded by the Rule. See Awards of this Division 1795, 4001, 4211 and 5855.
                                                                i


Form 1 Award No. 6366
 ge 3 Docket No. 6200
 2-UP-BM-'72

 However, as we stated in Award 4001 (Anrod), the basic test in determining whether "an investigation hearing was fair and impartial consonant with the
 requirements of due process, is not who conducted it, but how it was conducted.'f 'E
 (Emphasis supplied). The transcript reveals that the presiding Carrier officer
 appears to lack an appreciation of the nature and purpose of the hearing It is
 not held to prove the guilt of the charged employe, but to ascertain all of the
 facts, (See Award 2923). In cases involving disciplinary action, this Board relies
 upon the record.of hearing to determine whether there was substantial evidence to
 sustain the charge and whether the punishment decreed was reasonable and free from
 arbitrariness and capriciousness. Put of equal, if not greater importance is that
 the hearing is the one place where the disciplined worker can see that he is being
 given fair consideration and recognition of his problem by his employer. We should
 not, at this point in time, have to remind management of the nature of a well run
 grievance procedure to effectuate desired responses by employees to their work
 obligations and responsibilities. The time and effort spent in evolving the collective
 bargaining agreement can be vitiated when an aggrieved worker has reason to feel
 that it fails to, in fact, afford him protection against negative subjective reactions
 of supervision toward him with possible substantial impact upon his means of
 livelihood.

 There is merit to the Petitioner's claim that the hearing officer appeared to have pre-judged the case. Ile moved quickly through testimony on matters tq^cumentarily already established, and ignored the citation of Rule 22 of the strolling Agreement by the employe's representative. Ile did not endeavor to ascertain from the Claimant whether he had an explanation for the infraction of the endance rules or whether there were any mitigating circumstances. Even if it could be argued that he was technically correct in that it is incumbent upon the Claimant and his representatives to put such matters before him, this failure was not in harmony with the spirit and underlying purpose of the hearing. As stated above, we recognized the limitations of members of supervision in certain aspects of the process. By like token it is expected that equal recognition will be given to the possible equal. or greater inexpertise on the part of workers and their local representatives in treating with these matters. The entire tenor of the transcript gives the impression that the hearing officer was just going through the motions so as to satisfy the written words of Rule 37 and not its basic intent and meaning. See our Award 2923 (Kierztn) and First Division Award 21046.

 We are compelled to find that Claimant was not afforded a fair and impartial hearing. This should have been recognized promptly by the higher officer to whom the Organization appealed and the Matter moved for speedy adjustment- to reduce the economic impact and festering discontent stemming from it.

        We are not disregarding the fact that there were many failings on Claimant's

part which may have warranted penalty for failure to comply not only with Carrier j
 Rile 702 but also Rule 22 of the Controlling Agreement. Nor are we holding that the
 Carrier may not consider an employe's work record in determining the extent of
 discipline to be imposed. We do find that with these in mind, dismissal was an
 unreasonable application of such discretion as is afforded the Carrier in these
 ~'-cumstances It is regrettable that these deficiencies in Carrier's case result I
 ~_ what might appear to be an exoneration of the Claimant, although we believe,

                                                                J

Form. 1 Award No. 6366
 Pa ae 4 Docket No. 6200
 2-UP-BM-'72

 as stated above, his inattention to his obligation to give earliest possible notice of his being delayed in appearing for work would normally have warranted a reasonable penalty.

 As to the remedy, we find that the claimant and Petitioner should have given far greater consideration to the Carrier's offer of settlement made on May. 10, 1972.

        In our recent Award 6350, we found:


        "';'here is nothing in the record to indicate that Petitioner offered any alternative propositions other than full satisfaction of the claim in an effort to resolve the dispute, mitigate the damages, and bring to a halt the loss of earnings by the Claimant.


        We are not unmindful of the fact that acceptance of the Carrier's proposal, as offered, would have constituted a full settlement of the claim and would have foreclosed any further action on the part of the Claimant and the Petitioner to recover all or part of the more than ten weeks' lost earnings suffered by the Claimant. However, this Board has in its Awards admonished and cautioned parties to exert their best efforts to adjust disputes at the property whenever opportunity to do -so presents itself. Although we did not find that the evidence adduced at the hearing warranted a holding for dismissal, we did find that Claimant's testimony revealed an attitude and conduct which Petitioner should have considered... , whether to persist in its original position and await further processing of the claim rather than find a mutually satisfactory compromise which would have brought the matter to a close . ...It would therefore be improper for this Board to penalize the Carrier beyond the point when it opened the door for discussion of a compromise. Any subsequent wage loss was of Claimant's own choice and not reimbursible by the Carrier."


        'this is equally applicable to the existant matter and we are awarding

accordingly..

 As to the claim for interest on back pay being awarded, we have held, in Awards too numerous to cite that this is not contractually provided and therefore we are not, within the authority under. which we function, empowered to grant same.

                            A W A R D


        1. Claim sustained.


2. A) Carrier is ordered to restore Boilermaker Norman H. Sales to his former and right position.

 B) The Claimant shall be recalled to work by the Carrier and.upon hi:: return, shall be granted all of his seniority rights and benefits stemming therefrom. unimpaired. His vacation rights shall be such as he would have been entitled to under the Rules for active employment up to and including May 10, 1971. The period stay 11, 1.971 to the date of his retnrn to work shall be treated, for vacation .and retirement purposes, as though the Claimant had been on furlough without pay.
 _orm 1 Award No. 6366
 -age 5 Docket No. 6200 I
                                              2-UP-BM-'72


3. Carrier shall, pay to claimant a sum equal to what he would have earned had he teen employed in his position with it during the period February 26,
 1971 and May 10p 1971, less any earnings he may have had from employment elsewhere I
 during that period.

                              NATIONAL RAILROAD ADJUSTMENT HOARD

                              8y Order of Second Division


                                                                h i I


Attest:; lG~.CXGer __
 Executive Secretary f

 Dated at Cliicago~ Illinois, this 26th day of September,, 1972.