NATIONAL RAILROAD ADJUSTMENT BOARD

THIRD DIVISION

Clement P. Cull, Referee

BROTHERHOOD OF RAILWAY,

AIRLINE AND STEAMSHIP CLERKS, FREIGHT HANDLERS,

EXPRESS AND STATION EMPLOYES

BUFFALO CREEK RAILROAD - ERIE LACKAWANNA

RAILWAY COMPANY AND LEHIGH VALLEY RAILROAD

COMPANY (John F. Nash and Robert C. Haldeman, Trustees)

LESSEES

(a) The Carrier violated the current Agreement between the parties, when after Hearing and Investigation held on .July 24, 1970, it dismissed Mr. R. Procknal from service without just cause, and,

(b) Carrier's action in this case is arbitrary, capricious, and unwarranted.

(c) The evidence adduced at the Hearing and Investigation held on .July 24, 1970, in the office of Mr. C. M. Johnke, Supt., Buffalo Creek Railroad Company, does not, and did not, warrant dismissal from the service of Mr. R. Procknal.

(d) The Carrier shall now be required to restore Mr. R. Procknal, to service with all rights unimpaired and compensate him for all wage loss from July 24, 1970, when he was suspended from service pending Investigation and Hearing, until restored to service with all rights unimpaired; such rights to include, paid for life insurance, and hospital, medical and surgical insurance for himself and dependents, Travelers Insurance Company.

tion, the Claimant, the Superintendent, and the person who took the notes. There was no hearing officer as such. The Superintendent is the person to whom the Claimant was alleged to have been insubordinate. Thus he was Claimant's accuser. He was also the interrogator. It was he who passed judgment on Claimant and it was to him that all appeals were directed. Thus we find the Superintendent occupied the roles of accuser, prosecutor, judge and jury.

The letter of July 13, 1970 from the Superintendet to the Claimant is significant in that it clearly shows that the hearing was not to determine if Claimant was insubordinate but merely to determine why. The letter is reproduced below:

"Pursuant to your current agreement, Rule 26, you are hereby instructed to appear for hearing and investigation in the Superintendent's Office, Wednesday, July 15, 1970 at 10:00 A. M. to determine why you were insubordinate and failed to perform your assigned duties from June 29, 1970 to July 10, 1970, and again on July 13, 1970, when you were issued written instructions to perform assigned duties on Position 4.

You may have such witness or representative as you may choose."

With that state of mind and occupying all the positions as indicated above it can hardly be said that Claimant received a fair trial and we so find. As a fair and impartial hearing is essential in discipline case we find that under the circumstances herein, there is merit to Petitioner's contention that Carrier acted arbitrarily and capriciously. Awards 9832, 8088, 10410, 8431.

As we have found that Claimant did not get a fair and impartial hearing as required we shall sustain the Claim.

In view of our findings it is unnecessary to discuss the evidence adduced at the hearing.

Carrier raises a question as to the inclusion of certain welfare and insurance benefits in the Claim. This part of the Claim is denied not because these matters have not been found by the Courts to come within the purview of "wages, hours and working conditions" but merely because they are not referred to in the agreement.

The back pay to be paid to Claimant shall be in accordance with Rule 30 of the Agreement with an appropriate deduction for wages earned elsewhere. (Chicago, Burlington & Quincy R. Co. vs. Babcock, 204 U.S. 585, 598.)

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;

Award Number 19062

Docket. Number CL-19359

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 1, 1934;

AWARD

NATIONAL RAILROAD ADJUSTMENT BOARD

By Order of THIRD DIVISION

ATTEST: E. A. Killeen

Executive Secretary