Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 8945
 SECOND DIVISION Docket No. 8858
 2-SLSw-CM-'82
 The Second Division consisted of the regular members and in
 addition Referee Elliott M. Abramson when award was rendered.
 ( Brotherhood Railway Carmen of the United States
 Parties to Dispute: ( and Canada


Dispute: Claim of Employes:














F ind ins

 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.

This case arose out of an incident, on July 10, 1979 involving Claimant and his Foreman. Allegedly, Claimant did not follow the Foreman's instructions, respecting a task, and then laid off sick de3pite the fact that the Foreman told him he could not leave. On July 11, 1979 Claimant was advised that he was removed from service, effective July 10th, pending formal investigation for his alleged violation of Rule 801. Additionally, on July 10th Carrier sent Claimant a letter advising of a formal investigation, of the alleged violation of Rule 801, that was to take place on July 18th. This letter stated, in part: "You will report ... for formal investigation for alleged violation of Rule 801. Employees will not be retained in service who are insubordinate, quarrelsome ... Any act of hostility, misconduct or willful disregard or negligence affecting the interest of the Company ..." Claimant was later advised that such investigation was postponed to July 26th. Pursuant to the results of that investigation
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 Claimant was notified, by letter dated July 30, 1')79, that he was dismissed from service.

 At the outset several procedural objections lay Organization must be considered.

 The first of these is a contention that Rule 24-2, of the Agreement, was violated because Claimant was not apprised of the precise charge against lim. It seems to be Organization's position that since no specific physical coliduct, which is complained of, is mentioned in the charge, the latter lacked pre :is ion. However, the purpose of a rule such as 24-2 is to provide Claimant with sufficient information, as to conduct of his which is regarded improper, so that lie will be able to defend himself against charges relating to such conduct at an ij,v·!stigative trial. But this purpose was served by the charge. It mentioned Rule 801 and cited the latter's language. Claimant knew that this charge related to what [)ad transpired between himself and Foreman Fisher on July 10th because he knew that he had been laid off at the beginning of his work shift on July 11th, effective July 10th, and he knew that he and the Foreman ha,l had, at least some form of words or disagreement on July 10th. Consequently, Claimant certainly had been sufficiently alerted to what would be at issue at the investigative trial. and the type of matter against which he would then need to defend himself.

 As authority to such effect see Award No. 5541, Second Division. Here, Claimant, who had been involved in a disagreement with a Shop Engineer, was charged "for your violation of Rule N of the General Rules ... on July 21st, 1966 at 7:50 A.M. ... while on duty at the 49th Street Shop". The Board said:






It is thus clear that, in the instant case, no substantive violation of Rule 24-2 occurred.

 Other procedural objections raised by Claimant aro along the following lines: a) the hearing process was unfair because the Hearing officer played too many roles in the hearing and disciplinary procesr; to which Claimant was subject. It
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 is alleged that the Hearing Officer, in his capacity as a Railroad Official, would have had to have been first consulted for Claimant to have been suspended from service and also that, as the official to whom the first appeal was made, he reviewed his own actions and decision as Hearing Officer; b) the Hearing Officer was biased rather than impartial and had pre-judged the case; (e.g. he asked "leading questions of Claimant seeking to badger the latter into admissions adverse to himself;) c) the Foreman who testified against Claimant was antagonistic to the latter even prior to the occurrence of the incident from which the instant case evolved, had testified against Claimant in two other proceedings thought Claimant a "not very good worker", and was seeking to have Claimant dismissed so that this Foreman's past actions against Claimant would seem justified.

 CarxLer resists consideration of any of these procedural objections on the grounds that they were not raised at the hearing itself. And it cites considerable authority to the effect that points, issues and objections not brought forth in the handling of the claim on the property may not be advanced in behalf of a party's position in the submission of such party. For example, strongly in this vein is Award No. 7048, Second Division, which forcefully stated:














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 However, in this case, on the merits of ttese procedural objections, as explained below, we find no such fundamental deprivation of crucial rights, so the iss»e of their untimeliness need not be faced.

 Regarding the Hearing Officer's multiple roles, in the process of Claimant',, discipline, it may be pointed out that there are many cases certifying tile legitimacy of such multiple roles. For example in Award loo. 1788, Second Division, a Shop Superintendent filed the charges, presided at the hearing, asked questions at the Bearing, determined Claimant's guilt and imposed the penalty, but no impropriety was found. Also in Award No. 1795, Second Division, a Master Mechanic filed the charges, conducted the hearing, asked questions at the hearing, determined the issues and assessed the penalty. Again, no impropriety was found. Award No. 5360, Second Division, contains strong reasoning indicating why m1JrT.-P7;rit-y of roles does not invalidate the process:



Award No. 6057, Second Division, also indirates why a Hearing Officer's multiplicity of roles does not render the process illegitimate vis a via Claimant:

In any event, in this case, there would be no grounds, whatsoever, for finding an impropriety in the fact that the Hearing Officer was also the official to whom the first appeal was made, resulting in his reviewing Isis own decision, since this is explicitly provided for in the Agreement. R»le ;'4-5 statcs: "The initial appeal in discipline cases will he mzide to tape Carrier Officer rendering the original decision in the case..."

 The Organization also asserts that the Hearing Officer was biased against Claimant and had pre-judged the case against the latter. The record does not reflect such prejudice as Organization alludes to or a»y action on the part of
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 Hear3ug Officer which could be interpreted as depriving Claimant of a fair hearing. (At one point the Hearing Officer did try to forestall the Foreman from having to answer a question regarding whether subsequent to the incident in question, between Claimant and the Foreman, the Foreman was a participant in a conversation where the phrase "will fire the bastard" was used, regarding Claimant. But this, in itself, is surely not adequate index of an unfair hearing.)

 At the top 'of page 5 of its submis;3ion the Organization alludes to the following question, asked of Claimant by the Hearing Officer: "Did you tell Mr. Fisher he was a crazy son of a bite! and you were not going to move the singl_C car test device". This is referred to as a "leading" question by the Organization:. However, it is simply a question seeking to determine whether Claimant admits to doing something he was clearly alleged, at the hearing as having done. Thus it i'_:; an effort to directly ascertain information which is relevant to determining whether Claimant was guilty of the conduct with which he was charged.

 Also, toward the close of the hearing an Organization representative who had been present at the hearing he requested be permitted to be called as a witness, on Claimant's behalf despite the fact that "We realize that it is contreary (sic) to any policy, for one witness to be present and hear the testimony of another witness..." The Hearing Officer responded: "we realize the seriousness of this charge the (sic) man you have requ,~sted to take the witness stand .... is highly irregular (sic) but ... we will permitt (sic) it." Here is a situation in which, according to custom, the Hearing Officer would have frustrated Claimant's desires, but, instead bent over ba,2kward to accommodate them. Contrary to demonstrating prejudice such an in.:ident bespeaks an attitude of responsiveness to Claimant's needs and concerns bi- the Hearing Officer.

 The Organization also alleged procedural irregularity respecting the fact that Foreman Fisher, who testified against Claimant, had testified against Claimant in two previous hearings, was antagonistic toward him, and considered him a "Not very good worker". These facts would certainly not lead one to expect that this Foreman would be well, or sympathetically, disposed toward Claimant. But since lie was still Claimant's Foreman, at the time of the incident in question, if the argument that his past difficulties with Claimant automatically rendered any charges he were to bring, or any testimony he were to give, against Claimant invalid then the Foreman would be in the position of having to accept anything that Claimant wished to render as his work performance, regardless of how flagrantly inadequate. Under such a conception any charges brought by this Foreman against this Claimant, would be ipso ~:acto dismissed. This is obviously an untenable position and hence the Foreman cannot here be considered prejudicial against Claimant to the point where ii: is impossible for the latter to receive a fair hearing.

 Taking into account the context of the relationship between Foreman and Claimant the fairness of the hearing must speak for itself. On the basis we cannot find the hearing to be unfair on grounds of the past relationship between the Foreman and Claimant.
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 In this matter the organization also contends that Claimant should not have been suspended pending the hearing.: It points tc Rule 24-1 which provides for `'suspension in proper cases ..." and asserts that this was not such a case. In support of its position it cites Award No. 74-65, Second Division in which it was found that Claimant had been improperly suspended because it would not be substantiated "that leaving Claimant in service pending hearing could endanger the employee or his fellow employees". However, as indicated in Award No. 7034, there are suspension rules, one of which may have been in issue in Award No. 7465, which speak in terms of suspension being appropriate only when "leaving the man in service pending an investigation would endanger the employee or his fellow employees..." But as was true in Award No. 7034, the relevant rule in this case i.e. 21a-1, is not so confined respecting suspension criteria. Thus the fact that although Foreman said that after his discussion with Claimant, after Claimant had allegedly failed to perform the task that the Foreman had assigned him, he returned to his office in fear of his safety but, later in his testimony, acknowledged that Claimant did not make any threats on his person would not, and of itself, by its suggestion that Claimant was not really a danger to anyone, repudiate the propriety of a suspension in this case.

 The record reveals an. exceedingly sharp conflict i» testimony in this case. The Foreman alleges that Claimant did not move a device from one car to aziother when the Foreman instructed Claimant to do so and, further, that in indicating bin objection to doing so Claimant became loud in his speech and referred to t1ie Foreman as a "Crazy Son of a Bitch". The Carrier also alleges that If indeed, Claimant moved such device at all (which the Carrier denies) lie did so after he'd had second thoughts about the mentioned episode with the Foreman. Claimant, oi) the other hand, testified that he moved the device as requested by the Foreman and strongly denies he called the Foreman a "Crazy Son of a Bitch." The only possible wrongdoing which Claimant admits to is, that because his confrontation with the Foreman made him feel ill, he left his assignment to go to his family physician, even though the Foreman said that he did not: have permission to leave.

 The context of this case is also illuminated by reference to the past disciplinary record of Claimant on November 26, 1976 Cl.aimant was advised by the ,Ttechanical Foreman that the latter 's instructions had not been carried out in two separate respects. On February 18, 1977 Claimant was advised to the effect that lie was out of compliance with Carrier's safety rules iii his failure to wear the proper protective "hard hat" which is furnished by Carrier. On April 20 and April 21, 1978 investigation was conducted into charge:; that Claimant had violated General Rule N of Uniform Code of Safety Rules in that he a) had failed to comply with work instructions of a Foreman, b) had been dishonest in claiming overtime for work not actually done and c) had, without- provocation, struck another employee. As a result of these latter investigations claimant was dismissed .from service. (However, based on assurances from Claimant, that he now understood and would comply with the rules, he was, on a leniency basis, reinstated but without pay for time lost.)

 Given this background of insubordination, unreliability and being a difficult employee tcx deal with it can be seen how, if the Foreman's version of the Eacts in the instant case are accepted, suspension pending a hearing seems an appropriate, if not, indeed, necessary stop for Carrier to take. If Claimant
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 indeed became loud and in;;i6ordinate in response to work instructions from a Foreman and hurled epithets at the latter Carrier could be justly suspicious of whether Claimant would perform his duties in an orderly and safe manner during the period prior to the hearing date.

 Authority to this effect is represented by Award No. 7150, Second Division where the Board stated:

There are also cases in which Claimant's actions might be interpreted as much less disruptive than Claimant's here might be thought, if Foreman Fisher's version of the facts is given credence to, in which it was nevertheless held that suspension of Claimant was "proper". In Award Nos. 3310 and W4, both Second Division cases, suspension was upheld for a Claimant's refusal to work overtime assignments, while in Award No. 7034, Second Division, a suspension for failure to comply with directives relating to personal appearance was sustained. Also, in Award No. 6518, Second Division, a Foreman told a Claimant how to jack a car but the Claimant insisted t'.-c the procedure he wanted to use was safer. After acquainting himself with the facts of this dispute the General Foreman instructed the Claimant to use the procedure the Foreman had wanted used_ Claimant still refused, and at that point, was held out of service pending investigotion. The Board stated:

The Organization also makes a point of the fact that the Foreman with whom Claimant was involved, in the episode at the heart of this case, did not suspend Claimant on July 10th, the day of the episode, but waited until Claimant reporter! to work on July 11th to do so. From this fact the Organization deduces the assumption that the urgency usuall- connected with a suspension was not present here, since ClaLnant was not advised of the suspension until the day following the disputed incident, and that, therefore, suspension pending hearing was not necessary at all. In other words, suspension implies the necessity of taking immediate disciplinary action against Claimant, from the point of view of protecting the interests of the Railroad, and since the Railroad saw no need to suspend Claimant as soon as he'd committed his allegedly improper acts, there was not felt imminent peril to the Railroad's interests. This, in turn, implies that Claimant could have been kept at work until the investigative hearing occurred.

 But the logic of this argument is undercut by two factors. First of all, the suspension, when issued, was made effective on July 10th, the date of the incident in q,iestion. But, more importantly, Claimant left work, right after such incident, to gi to his physician, so that the earliest practicable time at which he would be aivised of his suspension was when he reported to work on July Ilth. This is exactly when he was advised of his suspension. Therefore the time that Claimant was advised of suspension was consistent with the notion that in cases where suspension is "p,-oper" it is necessary to remove a Claimant from his work assignment at th(~ earliest practicable time.
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 As to the dismissal penalty assessed against Claimant, the Carrier contends that it is entirely appropriate, in these premises, in view of Claimant's past ffli.sc'aplnary record, cited above. The Carrier points to Claimant's previous ii:~mis;~al and subsequent reinstatement on the understanding that Claimant then fully comprehended his responsibilities for acting in an appropriate maxaner can. f_ r>e `-,ill. Isis actions in the instant matter, Carrier asserts, signify a betrayal of tl)e bargain, to thenceforth comply with the rules, which Claimant struck with. Carrier at the time of such reinstatement. Hence dismissal here is fully supportable.

 As has been indicated above there is a sharp conflict in the testimony Iii -.1-)i s case. In c-.sence Foreman Fisher says that Claimant did not dry a;~ lie eras told, respecting a work task, and cursed him out for giving Claimant-. 1, 10, instructions. Claimant asserts he did do what was asked of him and dJsl it 4A, 1964? profanity in reference to the Foreman. In this situation Carrier leans 1~.~:.tz~,' i y on the well established principle that this Board functions in an appellate capacity and does not re-evaluate Carrier's resolution of the weight of ccv l st.~.: > > testimony, based on the investigative trial itself. There are a pletboaa «f decisions in this vein, running throughout this Board's, (and this Divi:Jon'::) history. For example, see Award No. 1809, Second Division, wherein it was stated:









So it is Carrier's strong position that the evidence in this matter was fairly heard at the investigative trial and that Carrier objectively resolved it against Claimant and assessed a penalty entirely consistent with that resolution, especially in view of Claimant's spotty disciplinary record, referred to above.

 However, some factors in this case do seem worthy of note. As previously mentioned, this Foreman and this Claimant had had difficulties in the past and the Foreman may have had the normal, understandable human, amount of animus against Claimant arising out of leaving before testified against Claimant in a disciplinary matter. Additionally, the Foreman acknowledged that lie lead an unfavorable impression of claimant a:; a worker. claimant also testified that, in Ow
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 incident here in question, the Foreman upbraided the Claimant and that this upset the latter because of a condition relating to an irritated or nervous digestive system for which he'd been under medical care. (Claimant provided evidence indicating that he'd been to consult with a physician on four different occasion;; between January, 1979 and July, 1979, including July 10th.) Claimant testified he then felt that he had to leave work to see his physician but that the Foreman would not grant him permission to do so because the Foreman said there was too much work to be done.

 It is possible, perhaps probable, that these various factors, and their combination, exacerbated the reactions of Claimant in the factual situation at ti.c core of this matter. Hence even accepting the finding that he acted improperl>> as charged, and violated Rule 801, it may well be that such mitigating factors played a part Ln leis action: . Consequently the Board feels that Claimant ought to he giver one, tmmi::takab- y last, chance. Tie should lie reinstated, witlIout any compensation for time le at.

 A WAR D

 Claim sustained, but only to the limited extent indicated above.

NATIONAL RAILROAD ADJUST1CNT BOARD

By Order of Second Division


Attest: Executive Secretary
 National Railroad Adjustment Board

 .,-~fosemarie Brasch - Administrative Assistant

 Dated at Chicago, Illinois, this 3rd day of March, 1982.