l
Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 6728
SECOND DIVISION Docket No. 6490
2-N&W-MA-' 74
The Second Division consisted of the regular members and in
addition Referee Robert M. O'Brien when award was rendered.
( International Association of Machinists
( and Aerospace Workers
Parties to Disu e:
(
( Norfolk and Western Railway Company
Dispute: Claim of Employes:
1. That the Norfolk and Western Railway Company violated the
controlling Agreement when it improperly assessed Machinist
Helper H. E. Hudson a ten-day deferred suspension to be
placed on his record on October 26, 1971, as a result of an
investigation held on September 27, 1971.
t. That accordingly, the Norfolk and Western Railway Company be
ordered to clear the record of Machinist Helper Hudson of
the ten-day deferred suspension as well as the charges and
investigation pertinent thereto.
Find ings:
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 employer 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 t© said dispute waived right of appearance at hearing
thereon.
Following a hearing,ccla imant was assessed discipline of 10
days
deferred suspension due to his failure to perform assigned work and
being absent without permission on Thursday, September 16, 1971.
At the hearing, claimant's representative attempted to question
foreman Foxzard, the principal Carrier witness, relative to the letter's
attitude toward claimant and any ill will that he may have against
claimant. However, the hearing officer conducting the inv·stigation denied
claimant's representative the right to develop this line of questioning_
Claimant contends that as a result he was deprived of a fair and
impartial hearing.
Form 1 - Award No. 6728
Page 2 Docket No. 6490
2-N8rW-MA-' 74
This Board is mindful of Carrier's right to hold and conduct
disciplinary hearings in such a manner so as to develop the pertinent
facts as expeditiously as possible. Yet in doing so the employee must
be given latitude to present his defense in a manner which enables hire
to refute the evidence produced against him. To deprive hire of this
rightsis to deprive him of the due process requirement of a fair and
impartial hearing. And we believe such was done in the instant case.
Proof ®f the charges against claimant hinged on the testimony of
foreman Fozzard who testified that on the claim date he observed claimant
away from his work area on three occasions and that claimant wade no
attempt to clean up his work area. And when claimant's representative
sought to elicit any possible bias, prejudice, or ill will that Mr.
Fozzard might have had toward claimant he was rebuffed by the hearing
officer. Claimant, in our opinion, should have been allowed to pursue
this line of questioning at the hearing.
When he
was not allowed to
do so he was deprived of a fair and impartial hearing. Due to this
deprivation of due process we will allow the claim without deciding the
writs thereof.
A WA R D
Claim sustained.
Attest: Executive Secretary
National Railroad Adjustment Board
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
;osemarie Brasch - Administrative Assistant
Dated at Chicago, Illinois, this 9th day of July, 1974.