Form 1 NATIONAL RAILROAD: ADJUSTMENT BOARD Award No. 7119
 SECOND DIVISION Docket No. 6837
 2-SOU-CM-'76
 The Second Division consisted of the regular members and in
 addition Referee Dana E. E.ischen when award was rendered.
 ( System Federation No. 21, Railway Employes'
Parties to Dispute: ( (Carmen)


Dispute: Claim of Em2loyes:



Findings:
The Second Division of the Adjustment Board,.Won the whole record and all. the evidence, finds that:

 'the carrier or carriers and the empioye or employes invo~Ye4 in this dispute are respectively carrier aid :empl,oye wit~in the meaning of the Railway Labor Act. as ~ approved dune 21-, ,1:93k,

 This Division of the Adjustment Board has jurisdiction over the dispute
 involved herein. v. .

 ,.. Parties to said dispute were given due no~ice of hearing thereon.

 There is no dispute regarding:the factual context out of which this claim arose. Claimant entered Carrier's service as Carman Apprentice on December 21, 1952 at Spartanburg, South Carolina and he completed his apprenticeship in 1962 when he transferred to Chattanooga, Tennessee. So far as the record shows his service was satisfactory until November 23, 1973 when he was suspended from service by Carrier's Master Mechanic at Chattanooga, H. W. Sanders and served with a notice of inve.~tigaticn reading as follows:


Form 1 Award No. 7119
 Page 2 r Docket No. 6837
 2-SOU-CM-'76 -







                          Master Mechanic"


On November 28, 1973 ark investigation was conducted by Master Mechanic H. W. Sanders. By letter of December 24, 1973 the Local Chairman filed a claim in favor of Claimant reading, in pertinent part, as follows;

        "Mr. Sanders, inasmuch, as no one present at the hearing for Mr. Sparks could explain ' company pplicy' and the charges being vague and unusual its the sense that.this is the first tame that the Company has disciplined an employee before he was convicted in a court; of law, 1 'request that you restore Mr. Sparks to service with pay for a7.1 time, regular arid overtime, lost and all seniority, vacation, retirement, and.health and welfare benefits unimpaired bar this suspensipn.

h. .
        As of the date of this letter Mx. Sharks hag not been indicted nor charged by the Hamilton County Grand Jury. If he is held out of service until the Grand fury true bills or no bills him he stands to lose many months of pay, Since Mr. Sparks performance in carrying out hip duties as a Carman are not in dispute we feed. that he s4ould lie entitled to work his assignment until such time as the charges preferred by you are proved in a cairt of law. .


                          Very truly yours,


                        /s/ JLK

                        Jack L. Kreis,

                        Local Chairman, No. X11'"


                .:

Form 1 Award No. 7119
 Page 3 ` Docket No. 6837
 2-SOU-CM-'76

 Thereafter, H. W. Sanders reviewed the record which he had developed as hearing; officer and, by letter dated January 1, 197+, H. W. Sanders informed Claimant as follows:

        "Dear Mr. Sparks:


        With reference to investigation conducted in my office November 28, 1973, wherein you were charged with conduct unbecoming an employee of Southern Railway Company, in particular, this charge involved with your arrest by Hamilton County, Tennessee detectives, .and preliminary hearing held on November 14, 1973, in Hamilton County, Tennessee., General Sessions Court in connection with charges against you of -receiving and concealing two stolen motorcycles and possession of 39 cartons of unstamped cigarettes.


        A study of the evideppe adduced ~n this investigation clearly shows you guilty of charges of conduct unbecoming An employee of Sputhern- Railway. . .


        You are dismissed from the service of Southern Railway. Please turn in any property of Southern Railway you mad have in your possession. .


                          Yours truly,


- H.
                      /s/ H. W. SANDERS

                      W. Sanders

                      Master Mechanic"


By subsequent letters dated. January 269 197 and March 22, 1974, the General
 Chairman protested the dism~ps;~l on grounds infer a,lia that: 1) Claimant
 had not, been indicted, tried or convicted, bu m x l~arrested at the time
 of his dismissal ar.i 2) Claimant had not received a fair and impartial
 investigation and had been dismissed unjustly because H. W. Sanders had
 acted as accuser, judge and jury. This appeal letter concluded as follows:

        "Due to the fact that Mr. Sparks was dismissed without just and sufficient cause and was not given a fair end impartial investigation, we are requesting that he be, restored to service with all rights unimpaired including ,retirement, health and welfare benefits beginning November 23, 1973 he be paid for all time lost including regular and overtime until he is restored to service.


        We respectfully request that this claim be allowed. as presented."

Form 1 Award No.7119
 Page 4 Docket No. 6837
 2-SOU-CM-' 76

 These appeals were denied at the highest level by letter dated July 19, 197+, wfuich pointed out that investigation had revealed claimant had a prior arrest record and concluded as follows:

        "As you have heretofore been advised, in view of the nature of the charges against Mr. Sparks, it was not to the carrier's best interest~that he be continued in service. He was accordingly d.i.smissed follpwing an investigation afforded him in accordance with the provisions of~Rule 3F+.


        Claim being without b asis'and unsupported by the agreement, I confirm uy previous decl,inatipn of the same."


By letter of August 6; 1974 the General Chairman advised of his intent to
 appeal the denial of the instant claim and informed Carrier further as
 follows: .
 "You advise that you x investigation 4weioped that
 Mr. Sparks had previously been arrested on February lg, 1.960,
 November 16, 1963, March 11, 1967, March C, 7.972 and January
 13, 1973. All these incidents oecuxed while Mr. Sparks was
 away from Southern Railway property. At no tune has he ever
 been charged with an unlawful act while on the property or
 while on duty. rr

        Mx. Sparks had been employed since 1852. His first arrest was in 1960. He' was not charged by the company in that incident or any of the other incidents you referred to, He regained in service over twelve (12j years after his .first arrest and was a good employee. Then he was dismissed over a charge that he has not yet been convicted of. As was' pointed out in conference on July 15, 1974, Mr. Sparks_ was not charged' with his past record but was only charged with .his arxest on ljovember 14, 1973.


        This is to advise 'that -your decision 3.s not- acceptable. and will be appealed.


                          Very truly yours,


                    w E, L: Deal .

                          Genera Chairman, Carmen"


Accordingly the claim comes to us fox disposition.

 Confining our review to the record developed on the property, as we must under the rules of the National Railroad Adjiztment Boar, we find that the issues joined are only two: 1) Whether Claimant was afforded a fair and impartial investigation and determination of guilt and 2) Whether mete arrest
 without indictment, trial, guilty plea or conviction is-grounds for discharge
 Form 1
 Award No. 719
 Page 5 Docket No. 6837
 2-SOU-CM-'76
In this connection, we must deem irrelevant for our purposes, evidence adduced for the first time before our Board of certain ex post facto developments, to wit; 1) that the hearing and investigation procedures objected to in this case have been amended to avoid overlapping prosecutorial and judgemental roles and 2) that the criminal charge against Claimant terminated, some months after he was suspended, by a withdrawal of the motorcycle charges and a guilty plea on the unstamped cigarette charges; with a suspended 6 months sentence and court costs being imposed by the Hamilton County Court.

 We have considered carefully the two basic issues joined on the property and conclude that we must concur with the position of the Organization that Claimant was not afforded a fair and impartial investigation. Carrier relies heavily upon our earlier denial Award 682+ wherein we declined to reinstate, another of the employes at Chattanooga who had been dismissed fox conduct unbecoming an employe. But review of that case points up essential distinctive features from our present case. Of primary importance, there was no evidence of prejudicial irregularities in the hearing procedure and, secondly, Carrier did not initiate disciplinary action until after trial and conviction. We deem establishment of these points to be sufficiently important to quote verbatim from Award 682+ as follows:

        "The Organization insists that Claimant was denied~an immediate investigation, in violation of Rule 34. A close reading of the entire record compels us to disagree. There was no need, let alone obligation, for disciplinary investigation and action upon the mere arrest of Claimant .in August 3.912, not was there arty basis at that time for a charge of conduct unbecoming an employee. Indeed, disciplinary action premised upon a bare arrest, before trial and conviction, would be of questionable validity under the just and sufficient cause requirement of Rule 43 . "


In any event, we find that ire cannot reach the substantive issue herein because of fatal prejudicial error in the prosecution of the Carrier's charges against Claimant. Specifically we dote that the unrefuted record establishes that Master Mechanic H. W. Sanders played the following roles in this case: 1) He was informed by anonymous phone call of Claimant's arrest on November 7, 1973; 2) He directed Carrier security forces tq conduct a field investigation; 3) He conducted a preliminary investigation of Claimant on the basis of which he suspended Claimant on November 23, 1973; 4) He prepared formal charges against Claimant; 5) Over the objection of the Organization, he acted as Hearing Officer in the formal hearing and investigation of Claimant held in his office on November 28, 1973; 6) He reviewed the record of his own investigation of his own charges against Claimant and on January 2, 197+ determined that they were supported by the record and he imposed discipline of dismissal; 7) He denied the organization's appeal of his decision and overruled its objection to his multiple roles. The foregoing facts are established by documents heretofore cited and by the following exchanges in the transcript of the investigation held November 28, 1973:
 Form 1 . Award No. 7119
 Page 6 Docket No. 6837
 2-SOU-CM-'76
 "Mr. Kreis to Mr. Gann

          Q,: Mr. Gann, where did you come across this information pertaining to Mr. Sparks?


          A: I first received a phone call from Mr. Sanders that Mr. Sparks had been arrested. I then called Chief Detective Cornish down at the jail, and he advised me that he had and I went down ~o the jail and got a copy of the arrest

    . sheet from Mx. Cornish's office."


        "Mr. Kreis to Mr. Sanders


          'Q: Mr. Sanders, will you state for the record who is preferring the charges?,


        A: The charges axe being preferred by Master Mechanic

        H. VT. Sanders, myself, as a representative of Southern

        Railway, in execution of their policy established because

        of the nature of Southern Railway's business of transporting

        commodities in interstate commerce.


        Mr: Summers to Mr. Sanders .


        ;Q: .May I make, an inquiry? This 'i's Summers representing

        Mx. Sparks. As I understand, sir, you will make a determina

        tion and such decision in this°hearing, is that right?


        Ai No. If you will let me get these preliminary procedures out

    . . , of the way, then I will comeback to you.


        Q,: All right."

                    ,


          "Q: If you are going to make a statement for the record at the conclusion of this, you can make it.


A: Well, I'm not going. to make it for the record, I want to
 to make, before we get into it, it is my understanding that
 you are hearing examiner and you are also the one who preferred
 the charges. Now I don't think that is a matter of what .
 we call due process of law. We feel that, I don't think I
    misinterpret it, me saying it personally but Z don't know.

    you can't be fair and impartial, but I think when you put

    a person in position of being prosecutes and judge at the

    same time, that it brings about, it removes the air of

Form 1 Award No. 7119
 Page 7 pocket No. 6837
 2-soU-CM-'76
 " impartiality completely. I hope you will take that
 in the light of nothing questioning your integrity. It
 is just a matter that you.know when we have one judge that
 tries a judges case.
 Q,: Excuse me. You will. have an opportunity to make a full
 statement when we conclude this. Again I am the presiding
 officer of this and as such the charges stand as they are
 and all I am interested in is getting a firm yes or no
 are the charges true or riot.
 A; I just wanted to see in the record that we are objec;ting to
 this type proceedure, Mr. Sanders. .
 Q_ You are on the record now, but nevertheless we are not in
 a Criminal Court, We just .investigate the charges whether
 there is a violation of what has been established as
 Southern Railway policy."
 r'Mr. Sanders to Mr. Sparks
 Q; Mr. Sparks, move your chair in a little closer and we will
 let you make a Statement. Mr. Sparks, you have heard the
 charges read and the statements made. Will you mQ~e a
 statement as to these charges?
 A: T was charged with possession of unstamped cigarettes, arid
 possession of two stolen motorcycles. Charged on pospess~on
 of two stolen motorcycles, this was thrown out of court.
 I haven't been Proved innocent, I mead guilty. But until
 I am proven guilty I don't see arty right that you have to
 fire me. Thats my opinion, of course your is your way.
 Until the case comes up I don't see any grounds to fire one.
 Q,: Well, the charges ant the letter that We read, and the charges
 against you, is why you were charged with conduct unbecoming
 a Southern Railway employee. Are the charges of Ha-#lton
 County correct?
 A; The charges are correct.
 Mr. Sanders to Mr. Kreis

        Q,: Any questions Mr. Kreis?,


        A: Yes sir.

Form 1 Award No. 7119
 Page 8 Docket No. 6837
 2-SOU-CM-' 76 "·~''

        "Mr. Kre:is to IOr. Sparks


        Q,: Mr. Sparks, are these facts or allegations?


        A: Allegations."


                        ~c- ~ ~c-


        Q: Mr. Summers?


          A: Yes sir. First of all I appreciate the opportunity of being here as counsel for Mr. Sparks, and I hope that anything that I've said, both on and off the record is being, be not. misconstrued. Nothing I have said toward you is not to you

      . as an individual but same proceeduxe that we .are have some,


    maybe difference of opinion on. T would also second Mx.

    Kreis' motion, ox request that he be reinstated pending a

    final determination. I'm speaking not only as a lawyer, Z'm

    ignorant of, but my daddy has worked for the railroad fox

    about 35 years, and I have been around the railroads a little

    bit when I was a youngster, so I know a little, riot much, but

    first of all, sir, and I think a proceedure where you are

    placed in an unfortunate situation happening to prefer the

    charge and being judge also has put you in a very difficult

    situation,~but you have assumed it. and that, I'm saying this,

    that I think that you have to bring the charges then I think

    of course that someone else ought to be the hearing examiner.

    Thats just a matter of proceedure."


                    . , ~ ~ -~-


      wQ;. Mr. Summers, I' ask you this if you heard this was it conducted a -fair and impartial manner?"


                      -~ ~- ~


    "A: You did the best that.You can, but you put a man in the position of having to be judge and prosecutor at the same time, he can't be.completely fair and impartial as hard as he may try and I think you've tried. In my opinion it is an impossibility because I have been a prosecutor in the District Attorneys office and since then now I'm a judge too, but I have never tried to coanbine two of those positions at the same time."


                  ~ ~c- ~


"Q: Mr. Buckner?
 Form 1 Award No. 7119
 Page g Docket No. 6837
 2-SOU-CM-'76
 "A: No sir, 3 don't think it is fair and impartial for the
 same reason as Mx. Kreis and Mr. Summers. I find it hard
 to believe that a person could fill office prosecutor and
 judge too, and also the fact is bring the charges you have
 refused to answer some of the questions."

 We have reviewed the conflicting awards cited by the parties on the question of multiplicity of roles by Carrier officers in discipline cases. We continue to adhere to our earlier general opinions that Carrier combines such functions in one individual at its peril; that some minor overlapping of roles, while not to be encouraged, is not prima facie evidence without more of prejudicial procedural imperfections; that the greater the merging of roles the more compelling the influence of prejudgment or prejudice and, that each such case must turn on its own merits. In the instant case we find that I-i. W. Sanders did not actually testify against Claimant in the hearing but that is literally the only flznction.he did not fulfill in this matter. He activated the investigation, preferred the charges, held the hearing, reviewed the record, assessed the discipline, arid denied the appeal. In so doing he fulfilled roles of investigator, prosecutor, trial judge and appellate judge. The disinterested development of evidence, the unbiased review thereof and the objective assessment of appropriate penalty inherent in concepts of fair and impartial discipline cannot be accomplished with such egregious overlapping of functions. This was nod a mere technicality but a substantial denial of Claimant's rights. We are left with no alternative but to sustain the'claim. See Awards 1+536, 6329, 6+39, 6795 and 7032.

                      A W A R D


    Claim sustained.


                            NATIONAL RAILROAD ADJUSTMENT BOARD

                            By Order of Second Division


Attest: Executive Secretary
 National Railroad Adjustment Board

                  7(77,- `,m

BY ~
 semarie Brasch - Administrative Assistant

 Dated at Chicago, Illinois, this 3rd day of August, 1976