/Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 9842
SECOND DIVISION Docket No. 9911
2-SPT-SM-'84
The Second Division consisted of the regular members and in
addition Referee Eckehard Muessig when award was rendered.
( Sheet Metal Workers' International Association
Parties to Dispute:
( Southern Pacific Transportation Company
Dispute: Claim of Employes:
(1) That claimant was unjustly disciplined when he was arbitrarily and
capriciously suspended from service by Carrier on July 4, 1981, with
insufficient cause and without a fair hearing, in violation of Rule 3'9
of the current Motive Power and Car Department Agreement.
(2) That 15 day suspension assessed against claimant T. C. Sipes be rescinded
and that his wages be paid for the 15 days lost in addition to pay for all
overtime lost during the time claimant was held out of service from
July 4, 1981 to August 22, 1981, plus an amount of 12% interest per annum
compounded on anniversary date of claim.
(3) Make claimant whole for all vacation rights.
(4) Reimburse claimant for all medical and dental expenses incurred while
. improperly withheld from service.
(5) Pay to claimants estate whatever benefits claimant has accrued with
regards to life insurance for all time improperly withheld from service.
(6) Pay claimant for all contractual holidays.
(7) Pay claimant for all other contractual benefits.
(8) Clear claimants personal record of the unjust hearing and suspension.
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 employes 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 was notified to attend a formal hearing in connection with his
alleged refusal to accept a work assignment on July 4, 1981. Subsequent to the
hearing, the Claimant was found guilty and was suspended from service for a
period of fifteen (15) days.
Form 1 Award No. 9842
Page 2 Docket No. 9911
2-SPT-SM-'84
At the outset, the Organization contends two procedural errors: (1) Claimant
was improperly removed from service pending a formal hearing; and, (2) the hearing
itself was not a fair and impartial proceeding essentially because the Hearing
Officer refused to allow an Organization witness to testify on behalf of the Claimant
and because of the manner in which he conducted the hearing itself.
With respect to the Claimant's removal from service at the time of the
incident which led to this dispute, we find the Carrier's action does not contravene
the parties' contractual provisions.
Concerning the conduct of the Hearing Officer, the Organization's contentions
that the Hearing Officer significantly restrained the fact-finding process is borne
out by the record. For it to be legitimate, disciplinary actions require the fair
and impartial trial agreed upon in Rule 39 of the parties' controlling agreement:.
The Carrier's Hearing Officer carries a heavy burden in this respect, because he
controls the hearing process, which has as its ultimate purpose the airing of all
relevant facts pertaining to the incident in question. Here, the Hearing Officer,
on numerous occasions, restricted the development of the Organization's arguments
before he had sufficient knowledge as to whether the argument being developed by the
Organization was or was not material. For example, in the instant case a witness
was not allowed to testify because he was not an eye witness to the incident under
dispute. Although cause for rejection on this basis is not entirely without merit,
this rejection followed the Organization's specific request that it would attempt
to develop and demonstrate disparate treatment. Such testimony, if presented, may
have been relevant since an integral part of the process leading to the Carrier"s
decision about the nature of the discipline to be imposed involves the matter of
like treatment -- as much as such is possible -- for similar offenses. At the
least, in the example cited, the Hearing Officer should have allowed the witness and
the Organization to present testimony up to the point where a reasonable decision
could be made as to its relevancy. The Organization correctly argues that this
line of defense should be a part of the record. Certainly, the Organization should
not use the hearing process as a forum to air grievances or other irrelevant
discontents not germane to the case at hand and, it did not do so herein.
Accordingly, while the Carrier does control the hearing, in those instances
where it prematurely forecloses the progression of testimony at a point before a
reasonable decision as to its relevance can be made, a fatal error with respect to
due process is found to exist.
The Board therefore concludes, without passing on the substantive matters
surrounding this claim, that the Claimant was denied the fair and impartial trial
to which he was entitled under the contract.
The claim is sustained to the extent that the fifteen (15) day suspension is
rescinded and Claimant compensated for wages lost during the fifteen (15) days
lost.
A W A R D
Claim sustained in accordance with the Findings.
Form 1
Page 3
Award No. 9842
Docket No. 9911
2-SPT-SM-'84
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Executive Secretary
Dated at Chicago, Illinois, this 4th day of April, 1984