Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 6907
SECOND DIVISION Docket No. 6757
2-B&O-F&0-'75
The Second Division consisted of the regular members and in
addition Referee Harold M. Weston when award was rendered.
( System Federation No. 4, Railway Employes'
( Department, A.F.L. - C.I.O. Firemen and Oilers
Parties to Dispute:
( The Baltimore and Ohio Railroad Company
Dispute: Claim of Employes:
1. That under the current agreement Laborer R. Willingham was
unjustly dismissed from the Carrier effective February
9, 1973.
2. That accordingly the Carrier be ordered to reinstate this
employee with seniority unimpaired, vacation rights unimpaired,
made whole for all health and welfare and insurance benefits
including Railroad Retirement and unemployment insurance, and
pay for all time lost retroactive to February
9, 1973.
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 question at issue is whether Claimant was dismissed without
the "fair and impartial hearing" prescribed by Rule
9
of the applicable
Agreement.
Claimant was charged with attempted theft of company property and,
after hearing had been held on the charges, was "found guilty" and dismissed
from Carrier's service. There is substantial credible evidence in the
record that Claimant had been observed by Foreman Palm carrying four
pieces of brass from the storage bulk shed to the edge of the property and.
setting it on the ground in the parking lot. It also is established that
his assignment required him to work on the fuel track, a considerable
distance from the bulk shed, and that
no
one had requested him to go to
the shed area or carry brass that day. Although Claimant denied removing
or carrying the brass, it is well settled in Railroad Adjustment Board
practice that Carrier's findings will not be dist-arbed if supported by
substantial, though controverted, evidence.
Form 1 Award No. 6907
Page 2 Docket No.
6757
2-B&o-F&o-
`75
Petitioner contends that Claimant was not given a "fair and impartial
hearings' since the hearing officer's questioning of Foreman Palm exhibited
prejudgement and Claimant was not afforded the opportunity of cross-examining
two of the adverse witnesses until all three adverse witnesses' direct
examinations had been completed. The latter objection was not raised at
the hearing or while the claim was being processed on the property and,
in line with established principles, will not be considered at this date.
There is no question but that several of the hearing officers
questions of Foreman Palm were far too leading and exceeded the bound of
propriety. Again, no objection was raised to them at the hearing or while
the case was being considered on the property. Nevertheless, if it did
appear that they materially prejudiced Claimant's case, we would set aside
the discipline imposed in this matter. While Carrier hearing officers may
not be technically trained in court-room procedure and rules of evidence
and may therefore be given some latitude in interrogating witnesses, they
must comply with elementary principles of fair play and due process.
Upon examining this record in its entirety, including the questions propounded of all witnesses and the specificity of the evidence, we are
satisfied that Claimant was not deprived of a fair and impartial hearing
and that reversible error was not committed by Carrier.
We will not substitute our judgment fox that of Carrier and wilt deny
('' the claim.
~J
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest: Executive Secretary
National Railroad Adjustment Board
,
Rosemarie Brasch - Administrative Assistant
Dated at Chicago, Illinois, this 15th day of August, 1975.