NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
BROTHERHOOD OF RAILWAY, AIRLINE AND STEAM
SHIP CLERKS, FREIGHT HANDLERS, EXPRESS AND
STATION EMPLOYES
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood (GL-6464) that:
OPINION OF BOARD: Claimant, Daniel Webster Dofner, an employe of Carrier's for seven (7) years was charged with reporting for work some three (3) hours and twenty-five (26) minutes late on February 16, 1967, and with involving himself in an "altercation" with his supervisor over this lateness and what was to be done about it.
Claimant was properly notified that an investigation of the above charges would be had and on February 23, 1967, a hearing was conducted by the Terminal Superintendent, the proper Carrier official. The Organization took objection several times during the hearing, alleging Claimant's right to a fair hearing was violated.
On March 2, 1967, Claimant was notified by the Superintendent of the Transportation Division that he had considered the evidence, found the charges sustained, and that Claimant was therefore "dismissed from the service."
There followed an exchange of correspondence in the review procedure, the relevant letters being (a) the one from the Superintendent of Union
Station affirming the decision of the Transportation Division Superintendent and (b) the next one from the same Transportation Division Superintendent declining a request for reinstatement. The Organization objected to a review being taken by the same officer who had rendered the opinion and decided the discipline from the transcript, but who had not been present at the hearing.
The Organization alleges that Carrier violated their Agreement with respect to Claimant. Set forth below are the pertinent sections of Rule 45, which we find controlling:
This Board has said and repeated innumerable times that it will not disturb the findings of the hearing nor interfere with the discipline meted out by Carrier where it is apparent that Claimant received a fair and impartial trial and that none of his rights were capriciously or arbitrarily violated.
In the instant case, this Board finds that Claimant received neither a fair trial nor a meaningful review.
We find the hearing officer erred in the manner of certain of his questions and rulings in the Record.
The hearing officer further erred when he introduced Claimant's past discipline record into the transcript. It has long been settled that although the past record may be considered in assessing discipline, a review of that record at the hearing precludes Claimant from being accorded a fair and impartial investigation of the current charges. (Awards 11130, 11308, and 13758).
Inclusion of Claimant's past record is compounded in the instant case where the opinion and decision for dismissal is issued, and, we must assume, arrived at by one other than he who heard the testimony. The official who conducts the investigation, hears the evidence and see the witnesses should evaluate the evidence and decide whether the charges will lie against the employe. Although the Agreement here is silent as to specifics, it calls for a fair and impartial hearing, and we fail to see how this can occur under the above circumstances. (Awards 7088, 8020, 10015 and 13180).
This becomes especially critical in the instant case where the one who rendered the decision and decided the discipline was also the next "higher officer" to whom appeal here had to be taken, denying Claimant his right to a fair review. (Award 10015). Again, although lacking in specificity, the Agreement concedes the right to appeal to the next highest officer and this can not be embodied one in the same person.