Award No. 12239
Docket No. SG-11434
NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
(Supplemental)
Kieran P. O'Gallagher, Referee
PARTIES TO DISPUTE:
BROTHERHOOD OF RAILROAD SIGNALMEN
CHICAGO & EASTERN ILLINOIS RAILROAD COMPANY
STATEMENT OF CLAIM: Claim of the General Committee of the
Brotherhood of Railroad Signalmen on the Chicago and Eastern Illinois Railroad that:
(a) The Carrier violated the current Signalmen's Agreement,
particularly Rule 71, when it assessed discipline against Signal Maintainer W. E. Scholz with assigned headquarters at Evansville, Indiana, following an investigation held on February 17, 19-59, in connection with an accident which occurred at approximately 8:45 A. M.,
February 9, 1959, bewteen Ingle and Haubstadt, Indiana.
(b) The Carrier now be required to compensate Signal Maintainer
i W. E. Scholz for all time lost (five working days) as a result of the
unwarranted discipline rendered. [Carrier's File No. 305-202]
OPINION OF BOARD:
It is the function of the Board not to substitute
our judgment for that of the Carrier, or to decide the matter in conformity
with what we might or might not do had we been the triers of the facts.
However, we do have the duty to examine the record to ascertain whether or
not the employe had a fair and impartial hearing, and in the instant case we
find that the failure of the Carrier to call the train crew of Extra 1200 South
as witnesses at the investigation did not fulfill the requirement that such
hearing be impartial, fair and penetrating, and therefore constituted a violation of the Rules.
FINDINGS: The Third Division of the Adjustment Board, upon the
whole record and all the evidence, finds and holds:
That the parties waived oral hearing;
That the Carrier and the Employes involved in this dispute are respectively Carrier and Employes within the meaning of the Railway Labor Act,
as approved June 21, 1934;
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That this Division of the Adjustment Board has jurisdiction over the
dispute involved herein; and
That the Agreement was violated.
AWARD
Claim sustained.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of THIRD DIVISION
ATTEST: S. H. Schulty
Executive Secretary
Dated at Chicago, Illinois, this 20th day of February 1964.
CARRIER MEMBERS' DISSENT TO AWARD 12239
DOCKET SG-11434
The record clearly establishes that Claimant was accorded a fair and impartial hearing, that Carrier was under no obligation to call the train crew
as witnesses, and that said crew could not possibly have shed additional light
on the material facts of the case. At the end of the investigation Claimant
was asked: "Mr. Scholz, have you presented all the evidence you wish in the
transcript this morning?" Claimant's reply was: "To the best of my knowledge."
We dissent.
G. L. Naylor
W. M. Roberts
R. E. Black
W. F. Euker
R. A. DeRossett