Form 1 NATIONAL RAILROAD ALIMSTMENT BOARD Award No. 9684
SECOND DIVISION Docket No. 8880
2-BN-FO-183
The Second Division consisted of the regular members and in
addition Referee Steven Briggs when award was rendered.
( International Brotherhood of Firemen & Oilers
Parties to Dispute:
( Burlington Northern Railroad Copmpany
Dispute: Claim of Employes;
1. Under the current controlling Agreement, Mr. C. R. Lyman, Laborer
Power Plant Attendant, Spokane, Washington, was, unjustly dealt with
when suspended for a period of thirty days of service from the
Burlington Northern, Inc., on September 13, 1979 to October 15,
1979.
2. That accordingly, the Burlington Northern, Inc. be ordered to compensate
Mr. C. R. Lyman for all time lost at the pro rata rate and any
reference to this incident stricken
from
his record.
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 over the dispute
involved herein.
Parties to said dispute waived right of appearance at hearing thereon.
The Claimant is employed as a Laborer-Power Plant Attendant at the Carriers
Hill yard Diesel Shop in Spokane, Washington. His regular work hours are 5:00
a. m. to 1:00 p. m. At the beginning of each shift he is required to start the
shop boilers and compressors. At 7:00 a. m. he reports to his supervisor for
further assignment as a laborer.
On July 7, 1979, after the Claimant had reported to him earlier in the
morning, Supervisor C. Cuzzetto searched the diesel shop between 7:45 a. m.
and 9:45 a.m.
in
order to assign him further duties. Foreman of Locomotives
R. Newstrand assisted Cuzzetto in the search. Neither man could find the
Claimant, who was not seen in the shop until approximately 9:45 a. m.
The next day, July 8, Cuzzetto assigned the Claimant to attend the
small lye vat. At 9:30 a.m., after he had so assigned the Claimant, Cuzzetto
came to the area where the vat is located and noticed that the Claimant was
not there. A search of the shop area ensued until 10:15 a. m., when the
Claimant was located.
Form 1 Award No. 9684
Page 2 Docket No. 8880
_ 2-BN-FO-183
The Claimant soon received from M. L. Varns, Shop Superintendent, a July 13,
1979, notice of investigation. It is quoted in pertinent part below:
"Attend investigation in the office of the shop superintendent
at 10:00 a.m., on August 6 , 1979, for the purpose of
ascertaining the facts and determining your responsibility in connection with your alleged failure to be
on the job from 7:45 a. m. to 9:45 a.m. on July 7, 1979,
and from 9:30 a. m. to 10:15 a.m. on July 8, 1979, as
assigned by your supervisor.
Arrange for representative and/or witness, if desired,
in accordance with governing provisions of prevailing rules."
Superintendent Varns ultimately conducted the investigation on August 14, 1979,
following a postponement request by the Claimant. At the investigation the
Claimant testified that on July 7, 1979, he left his assigned area to "... fill
in around the shop where I was needed with duties not assigned to me but more
as regular routine..."
On September 12, 1979, Varns issued a leteter to the Claimant informing
him that he was being suspended for a period of thirty (30) days for violation
of BN Rule 667.
The organization appealed the'suspension on October 18, 1979. The appeal
was denied in an October 24, 1979, letter from Superintendent Varns.
The Organization argues that the Carrier did not meet its burden of
proving the Claimant failed to be on the job. In fact, the organization
submits, he was working on various duties during the time Cuzzetto, Newstrand
and others were looking for him. For example, on one of the days in question
he cleaned three switch engines.
The Organization also argues that the Carrier's case is procedurally
defective due to the multiple roles of the hearing officer. Shop Superintendent
Varns proferred the charges against the Claimant, conducted the formal investigation
issued the discipline, and denied the appeal. The Claimant had asked six
different employes to appear and testify at the investigation. Prior to the
hearing five people were called into Superintendent Varns' office and questioned.
After that experience, none of the potential witnesses were anxious to testify
on behalf of the Claimant.
The Carrier argues that it met its burden of proving the Claimant was
absent from his assigned duties, particularly since he was vague concerning
his specific activities during the periods in question. Also, the work of
cleaning the three switch engines had been assigned to other employes. And
the Carrier notes that credibility questions are properly determined on the
property, not by this Board.
Finally, the Carrier argues that hearing officer multiple roles are not
a per se violation of the requirement for a fair and impartial hearing. Nothing
in the transcript indicates that Superintendent Varns conducted the investigation
in a biased manner. Furthermore, there has been no proof that his questioning
some employes prior to the hearing chilled their participation in any way.
Form 1 Award No. 9684
Page 3 Locket No. 8880
2-BN-FO-183
The Board has carefully reviewed the awards cited by both parties concerning
the multiple roles of Superintendent Varns. It is clear from the record that
he issued the charges, did his
own
prehearing investigation, conducted the
hearing, issued the discipline, and denied the Organization's appeal. While
we understand that multiple roles are not, in and of themselves, a violation
o f employe due process rights, we also note that in this case the entire
investigation and decision process appears to have been orchestrated by one
man, Superintendent Varns.
We are particularly concerned with Varns' prehearing meeting with potential
witnesses. As noted in Fourth Division Award 2158, the mere presence of a
hearing officer in a prehearing meeting with witnesses (and, we could add,
with potential witnesses) at which the case under consideration is discussed
is incompatible with the role of a hearing officer. His job is one of objectively
and impartially searching for the material facts from information presented
during the investigation. He should not function as a party participant. It
seems abundantly clear that the potential for development of bias is high
when the fact-finder engages in his own investigation prior to the formal
hearing he is charged with conducting in an impartial manner.
And Varns' dual decision-making role in issuing the suspension and in
denying the Organization's appeal to that suspension is also problematical.
We wonder how he could give independent and
nonprejudicial consideration
to
an appeal of his own decision.
This Division has addressed the multiple roles issue many times before.
One such instance is discussed in Award 7119:
"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
Carier combines such functions in one individual at its
own
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 pre-judgment or prejudice and, that each such case
must turn on its own merits. In the instant case we find that H.
W. Sanders did not actually testify againstd Claimant in the hearing
but that is literally the only function that he did not fulfill in
this matter. He activated the investigation, proferred 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 judge and appellate judge. The disinterested
development of appropriate penalty inherent in concepts of fair and
impartial discipline cannot be accomplished with such egregious
overlapping of functions. This was not a mere technicality but a
substantial denial of Claimant's rights. We are left with no
alternative but to sustain the claim."
Form 1 Award No. 9684
Page 4 Docket No. 8880
2-BN-FO-183
It should be noted that such involvement alone is not sufficient to
decide this case in the Organizations favor, nor is any other single aspect
of Varns' multiple roles. But his entire pattern of involvement in the
investigation, decision and appeals process has led us to the conclusion that
Varns could not possibly have remained impartial throughout the entire claims
process.
Accordingly, we must sustain the claim.
A W A R D
Claim sustained.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
ATTEST.
Nanc J, fbever - Executive Secretary
Dated at Chicago, Illinois, this 5th day of October, 1983.