Foam. 1 NATIONAL RAILROAD ADJUSTN17-272 BOARD Award No. 8098
SECOND DIVISION Docket No. 7888
. 2-C&W1J-CM-' 79

The Second Division consisted of the regular members and in addition Referee Bernard Cushman when award was rendered.

( System Federation TTo. 76, Railway Employes'

( Department, A. F. of L. - C. I. 0.

Parties to Dispute: ( (Carmen)

(

( Chicago and North Western Transportation Company

Dispute: Claim of Employes:

1. Coach Cleaner R. K. Davis was unjustly assessed fifteen days deferred suspension.

2. Coach Cleaner R. K. Davis was erroneously charged with failure to safely perform his duties, allegedly resulting in a personal injury.

3. That the Chicago and North Western Transportation Company be ordered to remove the fifteen (15) days deferred suspension from Claimant's record in accordance with Rule 35.

Findings:

The Second Division of the Adjustment Board, upon the whole record and a71 the evidence, finds that:

The carrier or carriers and the employe or employes inw lved in this dispute are respectively carrier and employe within the meaning of the Railway Labor Act as approved June 21, 1034.

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 Claimant, R. K. Davis was eriplayed 'air the Carrier at its California Avenue Car Maintenance Facility as a Coach Cleaner. On May 16, 1977, the Claimant while carrying some newspapers under his right arm and descending the stairs from the upper level of the passenger car twisted his ankle and was found to have suffered a sprained ankle, necessitating restricted duty for four days. By letter dated May 17, 1977, over the signature of J. F. Bowen, General Car Forenan, Claimant was notified to appear for a formal investigation on May 26, 1977. The letter stated the charge placed against him was:

"Your responsibility for your failure to safely perform your duties in that your failure to do so resulted in a personal injury to you on May 16, 1977, 9: 1+5 A.M."

Form 1 Award No. 8098
Page 2 Docket No. 7888
2-C&Nw-CM- ' 79

The investigation was postponed until June 2, 1977, and was conducted by the same James F. Bowen.

On June 14, 1977, the Carrier issued a discipline notice which advised the Claimant that he had been assessed fifteen days deferred suspension. The notice was signed by the same James F. Bowen. It further appears that Bowen stated at the investigation that he had checked the car. Bowen was the Investigating Officer. It further appears fro. the transcript of the investigation that Bowen filled out a poi~tion of the accident report, and that after the injury was incurred, Bowen sent the Claimant to the doctor. Because of the multiple roles played by Bowen in this matter, the Organization. contends that the Claimant did not receive a fair hearing. The Carrier contends that the Claimant did not use due care or comply with Rule M of the General Regulations and Safety Rules and Rules 44, 262 and 255. The Organization contends that Rules M, 44 and 255 were not mentioned in the handling of the case on the property and are not properly before the Board.

The Board's review of the transcript and the record indicates that Bowen played a substantial role in the investigation, that he preferred the charges, that he was the Investigating Officer, that he presented some evidence at the investigation and that he assessed the discipline. The question here was whether the Clainant ,,:ailed to safely perform his duties. Under all the circu:cnstances, the Board is of the view that on this record the defense of the Claimant was imnaired and that there was not a fair and impartial investigation. As in Ai.-wra -o. 7886 between the sa!re parties, the Board finds here that this is not an instance of a minor overlap of roles. Rather, the Board finds that the Hearing Officer "wax also the principle Carrier representative responsible for determining that the Claimant was remiss in his duties." ,,;here, as here, the Foreman activated the investigation, preferred the charges, held the hearing, made statements at the hearing, reviewed the record and assessed the discipline, he fulfilled the roles of investigator, prosecutor, and trial judge. Award No. 7119 holds in part:

"We have reviewed the conflicting awards cited by the parties on the question of ijiultiplicit;;r of roles by Carryer officers in d~.scipline cases. We continue to adhere to our earlier general opinions that Carrier co=mines such t,netions in one individual at its peril; that some minor overlapping of roles, while not to b e encouraged, is not brim facie evidence without more of prejudicial procedural imperfections; that the greater the merging of roles the more compeLlinl- the influence of prejud?:ent or prejudice and, that each such case must turn on its own merits. In the instant case we find that fi. W. Sanders did not actually testify against Claimant in the hearing but that is literally the only function he did not fulfill in this matter. He activated the intf--stigation, preferred the charges, held the hearing_ reviewed the record, assessed the discipline, and denied the appeal. In so doing he fulfilled roles of investigator, prosecutor, trial 'J-e and appellate judge. The disinterested development of evidence, the unbiased review

Form 1 Award No. 8098
Page 3 Docket No. 7888

2--C&1VW-CPI-' 79

"thereof and the objective assessment of appropriate penalty inherent in concepts of fair and impartial discipline cannot be accompliched with such egregious overlapping oz" functions. This was not; a, mere technicality but a substantial denial of Claimant's r.f;hts. We are left with no alternative but to sustain the claim. See Awards 4536, 6329, 6439, 6795, and 7032. It

The claim of failure to provide a fair hearing must be sustained.

A W A R D

Claim sustained.

NATIONAL RAILROAD ADJUST=T BOARD

By Order of Second Division

Attest: Executive Secretary
National Railroad Adjustment Board

BY ~.-t'' :.'.~c,l~ <,.

losemarie Lrasch - Aczri~iistrative Assistant

Dated~at Chicago, Illinois, this 27th day of September, 1979.