NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
(Supplemental)
STATEMENT OF CLAIM: Claim of the General Committee of the Brotherhood of Railroad Signalmen on the Atlanta and West Point Railroad Company-The Western Railway of Alabama that:
OPINION OF BOARD: On June 8, 1962, train No. 22 collided with a motor car in charge of Claimant Maintainer Bateman accompanied by Claimant Assistant Maintainer Smith. The motor car was unoccupied at time of collision. Claimants alighting when train came in view. The following day the Signal Supervisor wrote to and caused to be served upon Claimants the following:
Hearing was held on the appointed date. Thereafter, on June 19, 1962, the Signal Supervisor wrote to Claimants Bateman and Smith that they were being suspended for ten and five days, respectively, for "not complying with instructions in Chief Engineer's Circular No. 81." On August 21, 1962, the Local Chairman filed claim "Account the Carrier failed to comply with the
agreement particularly rule 60; and was in error in suspending (Claimants) without first preferring the exact charge or charges and sustaining such charges in a proper hearing." The Rule alleged to have been violated reads in material part:
"ARTICLE 7-DISCIPLINE AND GRIEVANCES
RULE 60
The June 9, 1962, notice of hearing, supra, did not charge Claimants with violating instructions in Chief Engineer's Circular No. 81. The only reference to that Circular in the transcript of the June 13th hearing is the following question directed to and answered by Claimant Bateman:
Rule 60 (a) unequivocally mandates that an employe with more than sixty day services can be disciplined only after he has been given notice 48 hours prior to hearing of the "exact charge or charges which have been made against him." The words selected by the parties, it must be conclusively presumed, are, in the interpretation of the Agreement, to be given their usual meaning unless a peculiar meaning is attached to them in the industry. The words "exact charge or charges" have no peculiar meaning. The parties herein have agreed that the indispensable foundation to a disciplinary proceeding is the service of "exact" charge (a). We are constrained by the Agreement. We may not substitute a sense of equity which is foreign to the dictates of the Agreement. We find nothing in the June 9, 1962, notice that satisfies the mandate.
An investigation, sole, is a discovery procedure. It can be likened to a. grand jury procedure to develop facts from which to determine whether an indictment should be returned. The indictment apprises the defendant of the precise (exact) illegal conduct with which he is charged so he can prepare and confine his defense thereto; fishing expeditions are barred in the trial; only probative material and relevant evidence is admissible. The defendant cannot be found guilty of anyother crime than that spelled out in the indictment.
W e are aware that a hearing within the contemplation of Rule 60 (a) is not attended by the technicalities of a criminal proceeding or even a civil proceeding in a court of record. We make the comparison only to illustrate the common understanding of due process. No man can defend himself against a charge to him unknown. Certainly, it is not due process to shovel anything and everything into a record and leave to the uninhibited hearing officer finding what misconduct he feels the employe has committed. Issue must be joined before hearing.
The record in this case demonstrates the ills of lack of due process. Here the Claimants were found guilty of not complying with instructions in Chief Engineer's Circular No. 81. They were not charged with such malfeasance. Even during the hearing they were not advised that they were being so charged which would have afforded them opportunity to move for the protection of their rights. Consequently, they were denied the indispensable due process right to prepare and present their defense to such a charg. From our study of the transcript of the hearing and the notice giving rise to it we are persuaded that Claimants were not on notice, real or constructive, that they were being tried for violation of Circular No. 81. We, therefore, will sustain paragraphs (a) and (c) of the Claim.
A further revelation of the ill engendered by failure to serve an exact charge is found in the Director of Personnel denial of the Claim on appeal, datd November 9, 1962, wherein he embellished the reason for the suspension by finding Claimants had violated Rule M-2 of the Operating Rules. The only reference to that Rule in the transcript of the hearing is whether Claimant Bateman was familiar with it.
Inasmuch as Carrier is not a party to the August 21, 1954 National Agreement we will dismiss paragraph (b) of the Claim.
Carrier argues that a settlement proposal made by Petitioner is evidence that the Claim is without merit. Settlement proposals made by either party, but not agreed to are not evidence as to the merits. This is a well established principle in the law of evidence. Were it otherwise it would deter the parties in using their good offices to settle disputes on the property-a laudable objective which the statute encourages.
FINDINGS: The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds and holds:
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;
That this Division of the Adjustment Board has jurisdiction over the dispute involved herein; and