Form 1 NATICdKL RAILROAD ADT"ISTs-IEHT BARD Award No. 8257
SECOND DIVISION Docket No. 7684
2-IC G-fW=' 80

The Second Division consisted of the regular members and in addition Referee Dana E. Eischen when award was rendered.

( System Federation No. 99, Railv~ay Employes'

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

Parties to Disoute : ( (Electrical Workers)

(

( Illinois Central Gulf Railroad Company

Dispute: Claim of F_':Iployes

1. That the Illinois Central Gulf Railroad violated the current agreements,

particularly Rule 39 cf the "A." Agreement, when Electrician R. Ho

McDade and Electrician Apprentices To D. Barney and J. B. Benedik were

unjustly dealt with and unjustly suspended from the service of the

Illinois Central G1-zlf Rail ro,d at Woodcrest Shoo on Decer_ber 2, 1975,

R. F. McDade was returned to service on December 25, 10'75 and To Do

Barney and J. B. Benedik were returned to service on December 17, 19','5.

(a) That the Claimants were not guilty as charged.

(b) That the Claimants were not afforded a fair- hearing in accor danc.-e

withRule 39.

2. That, accord.i ngly, the Illinois Central Gulf Yrailroad be ordered to

compensate the Claimants for a?1 lost weaMes, wi',h all, rights and

benefits restored and be bade ;~rhole for lost benefits such as ve.cwtion

rights, health and vre'iare incurance orernit,;::=s, credit for completion of

apprenticeship and to clear the records of the Claimants.

Findin,-c:

The Second Division of the Adjustr:ent 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 Railvray Labor Act as approved June 21, 193'+.

This Division of the Ad~ustxnent Board has jurisdiction over the dispute involved herein.

Parties to said dispute waived right of appearance at hearing thereon.

Claizr_ants were arployed at Carrier's V?oodcrest Shop Car Department. On

7 _975 fourth r _ i -TA t party to this dispute

October 1 , C?a?~_~,nts and a e.,mwoI,..e no;, ,
were discovered by t?.;o Ca rri c-r :;c.pervisors" in the ;-Jo-,e=~'e lounge of an Amtrak
car. According to ~,he test.-~oT.r of the: supervisors. Claimants were in a state of
repose on L~i1 C';TS oil ''"hF: 'F'iCU~ of the l cur,'i:.. Accord-r:; to C1 a iT_,Unto they
were either .:o_1:in- in the Cu'.I. car I:':c:..al'..'1' 'Gi':~=;i:>E.'1`i;,_, u<.5?,ilable to Pantra.ins`:~Ctors_
There is _-Lfbst,a&,ia1 evidence t0 sunno2-~ a CC~.1~1~ Oll that ^=:rvisors had inf,7i:,ied
Clai·.mnt;s on ririor occasions not t0 b° ut%r',C:'~.:'1';~ ar0'and or con-rcryated in groars
'GThen Amtral'i inspectors wire in the area, bu:~ ttli.re 7.s n0 suniiort for the asse'=Lion
Form 1 Award No. 8257
Page 2 Docket No. 7684
2-IC GEGT-' 80

that Claimants had been encouraged to "hide" from Amtrak inspectors. In any event, Claimants were notified to attend an investigation which was conducted on T:ove,:ber 12 and 13, 1975 by Shop Superintendent-Car r'. 1?. Nzehlenbein. Under date of December 2, 1975 Mr. 'T-luehlenbein advised Claimants of their suspension without pay for "occupying the Lounge in Asntra;. Car under-oino- repairs and not perfonaing duties". Cl?.ims were filed on behalf of each of the named Clai2nants and were denied by General Superintendent H. B. -Herrin on i::arch 11, 1(976, Thereafter t:ie claims were handled without resolution on the property and appealed to the Board.

We find that we cannot reach the merits of the disciplinary action because of a serious and fatal defect in the handling of the hearing and investigation by Carrier on the property. .

Immediately following the alleged incident on October 17, 1975 a "preinvestigation" meeting was convened by General Superintendent Her-°in i n his office. In attendance at that neeting were, 2u:onZ others, the Claimants and Shop Superintendent-Car '.~,ehlenbein. It should be understood that we are not holding that such meetings are improner nor se. however, the record in this case unmis takeab7,y establishes ~ 'Uhat statement s by `~eneral Superintendent Herrin at that particular meeting effectively prevented. CIM.nants frog: receiving the fair and impartial hearing; to which they were entitled under Rule 39.

The unrefuted record establ--'shes that G<,neral Superintendent becaire very ;angry

with Clair:ant i:_cDade and then told C1w-art;;, in the presence of Shop Supsriiaendent
Car T:ltzehlenbe:in, that he i,rould. ;-)ersonally see to it that they were severely
disciplined. This clearly established prejudgement by _==a rr z.n, z;ho was trio second
steappeal p officer in the grievance evance T'n'=_hine_'V. Even ,nor e aana~in g to Cl 2a=i..nt-s
p rights to an inpar'Li al investi,;anon, however, :raS the fact that zi'~rr in I:cede ,,.'?e Se
statements in the presence of his slab ordin atc:, ~'·TIr . li'?E'_Il~.c~.nbein' who SubsequE.'nt.Jserved as hearing officer and assessed the discipline.

Moreover, the record sho:.rs that within minutes of that Pre-investiation meetitlg Mr. i._`uehlenbein approached each of the Clai,nants anal _proposed that 1.7'c_,de "voluntarily" accept a six month suspension and. each of the otter C1aL.nants a three month sus pension. It is a reasonable conclusion that ~~r . ,aehl enbe.n :r^ s acting under instructions fron the hi:.'^_est oificer at the Shop, General ~uneri::?t~r,:ient Herrin. In our ju-d e,=:Let, the actions and s tatet.:.ents by the General >,ueri nt e :--n created an at,nosphere so prejudicial to Claii.aalts and so tainted with ~r~jui-;e::_ent,; that they were denied the fair and impartial investigation to which they are entitled under fiuZe 39.

In the ci rctm stances it would be tunr. easonable and unrealistic to e:Mec t t`1_, t the Hearing Officer, T,rho also assessed the discipline, woLLld be -unaffected by t,is superior officer's stated view of the case. 1,ie nest sustain the claim ;.rithout making anyy ;judgement regarding culpability or appropriateness of penalty.

A W A R D

Claim sustained.

Form 1 Award No. 8257
page 3 Docket No. 7684
2-ICG-EW-180
NATIONAL RAILROAD ADJUSTTP I`dT BOARD
By Order of Second Division

Attest; Executive Secretary ,

National Railroad Adjustment Board

By "=,;.._--_..~.~1.-s,...x:...r f---'~.-, -_ss..,°~--.-:,-'1
Rosemarie Brasch - x ch=Lnistrative Assistant

Dated at Chicago, Illinois, this 5th day of Prarch, 1980.