NATIONAL RAILROAD ADJUSTMENT BOARD
Form 1 SECOND DIVISION Award No. 12520
Docket No. 12482
93-2-92-2-18
The Second Division consisted of the regular members and in
addition Referee Kay McMurray when award was rendered.
(International Association of
(Machinists and Aerospace Workers
PARTIES TO DISPUTE:
(The Kansas City Southern
(Railway Company
STATEMENT OF CLAIM:
"1. That the Kansas City Southern Railway company
violated Rule 29(L), in particular, but not limited
thereto, of the Current Controlling Agreement
between the International Association of Machinists
and Aerospace Workers and the Kansas City Southern
Railway Company when it harshly and unjustly
dismissed Machinist E. A. Riley, III, from service
after formal investigation for allegedly being in
violation of Carrier Rule 85, effective June 13,
1991. He was reinstated to service on September 3,
1991, but without being made whole for lost time.
2. That the Kansas City Southern Railway Company
compensate Machinist E. A. Riley, III, for all lost
wages and benefits he would have received had he
not been unjustly dismissed from service on June
13, 1991, and continuing until he was reinstated on
September 3, 1991, and expunged from his personal
record any and all reference to the charges,
investigation, etc. pertaining to the instant
dispute."
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.
Form 1 Award No. 12520
Page 2 Docket No. 12482
93-2-92-2-18
Parties to said dispute waived right of appearance at hearing
thereon.
The dispute here under consideration produced a voluminous
file. There were sharp disagreements between the parties and
numerous allegations by the Organization that it was being treated
unfairly. A careful study of the entire record reveals no specific
problems which would require comment by this Board in order to
assist the parties in establishing a more cooperative relationship
in furtherance of their joint interest in the enterprise. Further,
it is not necessary to resolve all the problems in order to dispose
of the claim before the Board. The Organization, among other
charges, believes that the Carrier violated Rule 29(1) of the
current working agreement by the manner in which the formal
Investigation was conducted. Rule 29(1) in pertinent part reads:
"No employee shall be disciplined without a ,fair hearing
by the Carrier."
The record reveals that the Superintendent of Locomotives, was
the charging party in the disciplinary action. The transcript also
lists him as assisting the Hearing Officer, at the hearing during
the conduct of the formal Investigation. In addition, he also
assessed the penalty. The discharge letter states in part:
"After a careful review of the transcript (he also
participated in the hearing) of this investigation, it is
my determination that you were in violation of Rule 85 .
...Accordingly, you are being dismissed from the service
of the Kansas City Southern Railway Company, effective
June 13, 1991."
It was signed by the Superintendent of Locomotives.
The Organization takes strong exception to the multiplicity of
roles played by the Superintendent of Locomotives and believes that
a fair hearing cannot be obtained under such circumstances. We
agree. A hearing in which one Carrier official prefers the charges
and then serves as judge and jury does not, in our opinion, meet
the standards of fairness required by the statute, the contract and
the practices of this Board. Accordingly, we find that Rule 29(1)
was violated by the Carrier and we have no alternative but to
uphold the organization's claim.
Form 1 Award No. 12520
Page 3 Docket No. 12482
93-2-92-2-18
It should be noted that this Board is very reluctant to make
decisions which effect the safety of operations of the enterprise.
However, in this case, that decision has already been made by the
Carrier in returning the Claimant to service on September 3, 1991.
A W A R D
Claim sustained.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest,
Nancy J/~Kver - Executive Secretary
Dated at Chicago, Illinois, this 3rd day of March 1993.
CARRIER MEMBERS' DISSENT
TO
SECOND DIVISION AWARD 12520, DOCKET 12482
(Referee McMurray)
The Majority sustained the Claim solely on the basis that the same Carrier
Officer prepared the notice of charge, assisted the Hearing Officer at the Investigation, and issued the discipline. The basis of the decision must be as
surprising to the Organization as it is to the Carrier. A review of the Organization's Submission to the Board reveals that it did not believe the issue of
"multiplicity of roles" was even worthy of mention, let alone argument. The
subject is not to be found in its Submission.
The Majority seeks to support its decision on the basis of "standards of
fairness required by the statute, the Agreement, and the practices of the
Board." It refers to no portion of the Railway Labor Act requiring its result
- there is none. It refers to no "practices" of this Board requiring the
result - there are none. The Majority does refer to the Agreement provision
requiring a "fair hearing." On this point, there is a virtual plethora of
Awards dealing with the issue of whether Agreement due process ("standards of
fairness") rights are violated when the same Carrier Officer performs the
functions which the Majority here held improper. The Majority does not cite a
single Award to support its holding and we are not aware of any. On the other
hand, a citation of Awards that have rejected such rationale could fill the
rest of this page. In the interest of time, only eight will be cited. Second
Division Awards: 8537, 8412, 8272, 8103, 7196, 6 8, 5360, 5223.
We dissent.
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M. C. Lesnik
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