Form 1 NATIONAL RAILROAD ADJUSTMENT BaARD Award No. 667;5
SECOND DIVISION Docket No. 656()
. 2-PC-MA-'74
The Second Division consisted of the regular members and in
addition Referee Irwin M. Lieberman when award was rendered.
( International Association of Machinists
( and Aerospace Workers, AFL-CIO
Parties to Dispute:
Penn Central Transportation Company
( (formerly New York Central Railroad)
Dispute: Claim of Employes:
1. That Machinist P. Ceroala was improperly dismissed from
service following investigation held on July 12, 1971.
2. That the investigation was held in violation of Rule 36.
3. That accordingly, Carrier be ordered to restore Machinist
P. Ceroala to service with all rights unimpaired,.with
pay for lost wages.
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.
Parties to said dispute waived right of appearance at hearing
thereon..
The dispute in this matter involves the discharge of Claimant
for allegedly stealing seven gallons of gasoline on May 10, 1971, from
Carrier. Claimant was also tried in local court, charged with a misdemeanor for this act and the case was dismissed following the trial;
subsequently, after investigation, Claimant was found guilty by Carrier
and dismissed.
The two critical questions raised by this dispute are: (1)
was Claimant afforded a fair hearing and (2) was there substantial
evidence to support Carrier's conclusion that he was guilty. We do not
quarrel with the concept that if an employe is found guilty of stealing
dismissal is an appropriate penalty.
Form 1 Award No. 6675
Page 2 Docket No.
6560
2- PC-MA-'
74
Although we recognize full well 'that Carrier is not bound by a
decision reached in criminal proceedings in its_disciplinary process
(Awards
13116
and
6155
among others), it is certainly clear in this case
that the sworn testimony in the criminal trial was given by the same
Carrier police officers who testified in this investigation. Farther
since the criminal proceeding was initiated by Carrier's charges it is
impossible and inappropriate to totally divorce the two proceedings as
the hearing officer attempted to do. In our judgement, even though we
affirm the principle of independence of Carrier in meting out penalties
without reference to the conclusions reached in the related criminal
trial, the testimony and record of the criminal proceeding may have
relevance to the investigation and should not be barred. In this case
it was clearly an error on the part of the hearing officer to preclude
any reference to the criminal trial and to prohibit cross examination of
Carrier witnesses on important elements of testimony which may have been
in conflict with their earlier criminal trial testimony. A company
disciplinary hearing must be far more flexible than a criminal trial and
the hearing officer should lean over backwards to include all pertinent
information and evidence; to do less would be to remove all vestige of
investigative equity and deprive employes of due process. The importance
of the right to cross examine witnesses in disciplinary investigations
has been the subject of a number of our Awards and is particularly well
stated in Award
5336
and Third Divisions Awards
3288
and
12812.
With respect to the second issue, a study of the transcript
reveals the following:
1. Seven gallons of gas were missing according to the gauge
on
the pump.
2. No one actually saw Claimant steal the gas and there was
no evidence that he had the key to the pump which was
essential in order to remove gas. There was no evidence
that the gas was found in his possession.
3.
Three Carrier police officers testified that Claimant had
confessed to the crime when apprehended. He did not dis=
- pute their testimony.
4.
Claimant denied the theft at both the criminal proceeding and at the investigation.
5.
Evidence was introduced that Claimant had bought almost
a full tank of gas the same day and it would not have
been possible to put seven more gallons into the tank of
his small car.
Form 1
Page
3
Award No.6675
Docket No.
656C~
2-PC-MA-'74
Without considering the question of credibility, which is not
within our province, it is clear that there is not sufficient substantial
evidence to support Carrier's finding of Claimant's guilt.
Based on the conclusions indicated above.with respect to both
questions, we find that Claimant was improperly dismissed from service
and should be restored to service and made whole in accordance with
Rule
36.
A W A R D
Claim sustained.
Attest: Executive Secretary
National Railroad Adjustment Board
os marie Brasch- Administrative Assistant
Dated a Chicago, Illinois, this
17th day of April, 1974.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division,