Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 9567
 SECOND DIVISION Docket No. 9548
 2-CR-EW-'83
 The Second Division consisted of the regular members and in
 addition Referee David P. Twomey when award was rendered.
 ( International Brotherhood of Electrical Workers
 Parties to Dispute:
 ( Consolidated Rail Corporation

 Dispute: Claim of Employes:
That the action of the Consolidated Rail Corporation (Conrail) in assessing five days deferred suspension to Electrician L. P. Robinson was unjust, arbitrary and a deliberate abuse of power by the Carrier.

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 aver the dispute involved herein.

The Claimant is Electrician L. P. Robinson, who at the time of this dispute had approximately ten and one-half years of service and a clear disciplinary record. Mr. Robinson was notified by letter dated January 3, 1980 to appear for a trial on the following charges:



The trial was held on January 24, 1980 and February 13, 1980. By letter dated February 28, 1980, Mr. Robinson was notified that he was assessed discipline of fifteen (15) days deferred suspension. Apeal from this discipline was made, and at a conference on the appeal held on March 18, 1980, the Manager of Labor Relations reduced the fifteen days deferred suspension to five days deferred suspension. The matter was progressed on the property in the usual manner; and it is properly before this Board.
 Form 1 Award No. 9567
 Page 2 Docket No. 9548
 2-CR-EW-183

 The Organization contends, among other things, that there was not a fair and impartial investigation because of the statements of Mr. Jolley as brought out in the transcript. The Organization states that the Trial Officer is Mr. Jolley's subordinate and based on the statement made by Mr. Jolley, he had to have been biased against Mr. Robinson.

 The Carrier contends on this matter, that the Board does not know whether Mr. Jolley made the statement. And even if he did, such statements have no bearing on the case. The Carrier contends that Mr. Robinson was assessed the 5 day deferred suspension based solely on the evidence of record.




































Form 1 Award No. 9567
 Page 3 Docket No. 951+8
 2-CR-EW-183

 The record indicates that at the time of the trial Mr. J. V. Jolley was the General Superintendent Locomotive Repair, Mr. R. C. Hesley was the General Foreman working under Mr. Jolley, Mr. E. F. Rogus was the General Superintendent: Comp. Remfg.; and Mr. L. J. Longo was the Local Chairman, IBEW, who was Mr. Robinson's representative at the trial and was also present when 1r. Jolley spoke at the monthly meeting with all union chairman of the shops.

 The Carrier contends that the Board does not know that Mr. Jolley made the statement set forth above. The testimony of Mr. McMullen is clear; and it was not rebutted at the Trial or at any time during the handling of this case on the property. We must find that Mr. Jolley made the statement as reported by Mr. McMullen.

 The role of "trial", "investigating" or "hearing" off iacers in disciplinary matters in the railroad industry is most unusual in comparison to other organized industries in this Country where when the parties cannot agree on the disposition of a matter of discipline a disinterested third party is selected with both the company and union participating in the selection process, and this individual makes the credibility determinations. Much has been written and said about the high degree of integrity and impartiality owed the parties by these third party labor arbitrators. The railroad industry is unique in that a carrier officer, a management official, while serving as trial or hearing officer, has the responsibility of making credibility determinations, often between conflicting testimony of fellow carrier officers and employees represented by a union; and these determinations will not be set aside by the arbitration tribunals which exist under the Railway Labor Act so long as the officer's findings are supported by substantial evidence of record. Carrier officials serving as trial or hearing officers have the same high responsibility as labor arbitrators (as well as jurors or judges)called upon to determine questions of fact. The Carrier must not take any action that might influence or taint this very delicate process.

 Mr. Jolley's statement indicates that he had personally reviewed all charges brought against each employee and concluded "we" are going to make them stick this time. Since Superintendent Jolley was the trial officer's superior; and Superintendent Jo lley had publicly communicated prior to the trial that -- he had reviewed all charges against each employe and that we are going to make them stick this time -- we find that Superintendent Jolley destroyed the delicate balance which must exist for trial officers to make credibility determinations without influence from superior officers. Credibility issues existed in this case. Mr. Jolley had prejudged the case and publicly delivered his determination some two weeks prior to the start of the trial.

 The claim is sustained to the extent that the Carrier is ordered to remove, the five day deferred suspension from the record of L. P. Robinson.


Form 1
 Pa ge 4

 Attest: Acting Executive Secretaxy
 National Railroad Adjustment Board

 By.

Dated( at Chicago, Illinois, this 13th day of July, 1983.

 Award No. 9567
 Docket No. 958
 2-CR-EW-183

 NATIONAL RAILROAD ADJUSTMENT BOARD
 By Order of Second Division

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