(Brotherhood of Railway, Airline and Steamship Clerks, ( Freight Handlers, Express and Station Employes PARTIES TO DISPUTE: (George P. Baker, Richard C. Bond, Jervis Langdon, Jr., ( and Willard Wirtz, Trustees of the Property of ( Penn Central Transportation Company, Debtor

(a) The Carrier violated the Rules Agreement, effective February 1, 1968, particularly Rule 6-A-1, when it assessed discipline of 14 days suspension, later reduced to 1 Edgemoor, Del.

 (b) Claimant J. A. Murter's record be cleared of the charges brought against him.

 (c) Claimant J. A. Murter now be compensated for the wage loss sustained during the period out o annum, compounded daily.

 OPINION OF BOARD: Claimant, an employee of six years seniority, with an un
 blemished record, as Extra Yard Clerk, was, on May 20, 1971,
 assigned as Extra Clerk at the Transportation Center, Edgemoor, Delaware, and
 was called to fill a vacancy in a Flexowriter position. His tour of duty was
 from 2 p.m. to 10 p.m. At about 8 p.m. of that day, claimant became i11. He
 advised a clerk of his illness and left, not completing his trick.

 Next day, he was charged with a violation of Rule T of Carrier's Rules and was given a hearing on the charges.

 After completion of the hearing, the claimant was given a fourteen days disciplinary suspension, which was subsequently reduced to ten days. The hearing was conducted by the Supervisory Agent, who brought the charges against claimant, but the decision was rendered by the Assistant Superintendent of Stations.

 Claimant contends that: 1) He did not have a fair and impartial investigation, because the same Hearing Officer and imposer of discipline; 2) The discipline was not justified; 3) his record should be cleared and he be compensated for all wage loss, plus interest at 6% per annum, compounded daily.

 t


Rule 6-A-i of the Agreement between the parties herein, provides, in part:
        "(a) An employee who has been in the service more than 60 calendar days or when application has been formally approved, shall not be disciplined or dismissed without a fair and impartial investigation."


Although an investigation of a violation of a rule in labor relations, is not limited to strict Rules of Evidence, yet it is akin to a trial, and the Hearing Officer occupies the position of a Judge, who must be impartial and capable of rendering a fair and unbiased decision. It is inconceivable for a Judge, in a court of justice, to be the prosecuter and the judge at the same time. Having acted as prosecutor, he cannot be expected to also act as impartial judge. Such a proce the Railroad industry, this procedure has been tolerated and approved for many years and we shall not reverse it here.

 However, in the instant case, the Carrier went much further than having the prosecutor act as judge. It divided the function of the hearing officer into two personalities -- one to hear the case and another one to dec. _ it. On this issue, we held in numerous awards that the separation of the powers and duties of the hearing officer, violates the concept of a "fair and impartiainvestigation." (Awar
        In Award Number 6087, we said:


        "Where, as here, the decision is not rendered by the official who conducted the investigation, but is made by the official

        who preferred the charges against the employee , it can-

        not reasonably be said that the employee has been afforded an

        investigation and decision in compliance with the rule."


        And, in Award Number 8020, we said:


        "The plain meaning of such a rule is: that the official who conducted the investigation, heard the evidence and saw the witnesses will evaluate the evidence and decide whether the employee was guilty or innocent of the charge."


We adhere to the opinions in the above awards. The manner in which the investigation was held and decision arrived at was in violation of Rule 6-A-1.

 Having reached the above conclusions, there is no need to discuss the question of evidence or extent of the discipline.
                    Award Number 19935 Page 3

                    Docket Number CL-19920


As to the question of interest, we shall adhere to the prevailing opinions that the contract does not provide for such remedies. Disputes affecting violations of contractual provisions of labor relations agreements are not comparable to v If interest is intended, the Agreement should so provide.

        FINDINGS: The 'third Mvi;ion of the Adjustment Board, upon the whole record and all the evidL1.jcc, fines ;ind holds:


        That the parties waived oral hearimie;


That the Carrier and the I:mployes involved in this dispute are respectively (:artier ...nd Employes within the ii1:-;Lniug of the I',ailway Labor Act, as approved June 21, 1)34·

 Thal tiiia 1)i~·isi.~n of tiiu Adjustment board has jurisdiction over the dispute involved horcin; and

        Carrier violated the provisions of Rule 6-A-1.


                    A IJ A R D


        Claim is sustained as provided in Opinion.


                            NATIONAL RAILROAD ADJUSTMENT BOARD

                            By order of Third Di.vision


        ATTEST: Executive Sccrutary


Dated at Chicago, Illinois, this 7th day of September 1973.
          DISSL7dT OF CARRIER MEMERS ' TO AWARD I?0. 19935

          Dy'r NO. CL-1 20


This Award is contrary to many sound Awards of this Board insofar as the investigation on the property is concerned. The manner in which the investigation was held and the decision arrived at was not in violation of arty Rules of the Agreement.

 In this connection, many Awards were cited, but the Neutral chose to ignore them. We dissent.

                        H, F. t~1. Bra~dw00Q


                        P. C. Carter ~


                        W. B. Jone s


                        G. L. Naylor


                        G M. Youhn

              NATIONAL RAILROAD ADJUSTMENT BOARD

              Award Number 19935

              THIRD DIVISION Docket Number CL-19920


                Benjamin Rubenstein, Referee


(Brotherhood of Railway, Airline and Steamship Clerks, ( Freight Handlers, Express and Station Employes PARTIES TO DISPUTE: (George P. Baker, Richard C. Bond, Jervis Langdon, Jr., ( and Willard Wirtz, Trustees of the Property of ( Penn Central Transportation Company, Debtor

              STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood (GL-7177) that:


(a) The Carrier violated the Rules Agreement, effective February 1, 1968, particularly Rule 6-A-1, when it assessed discipline of 14 days suspension, later reduced to 1 Edgemoor, Del.

 (b) Claimant J. A. Murter's record be cleared of the charges brought against him.

 (c) Claimant J. A. Murter now be compensated for t;ie wage loss sustained during the period out of s annum, compounded daily.

 OPINION OF BOARD: Claimant, an employee of six years seniority, with an un
 blemished record, as Extra Yard Clerk, was, on May 20, 1971,
 assigned as Extra Clerk at the Transportation Center, Edgemoor, Delaware, and
 was called to fill a vacancy in a Flexowriter position. His tour of duty was
 from 2 p.m. to 10 p.m. At about 8 p.m. of that day, claimant became i11. He
 advised a clerk of his illness and left, not completing his trick.

 Next day, he was charged with a violation of Rule T of Carrier's Rules and was given a hearing on the charges.

 After completion of the hearing, the claimant was given a fourteen days disciplinary suspension, which was subsequently reduced to ten days. The hearing was conducted by the Supervisory Agent, who brought the charges against claimant, but the decision was rendered by the Assistant Superintendent of Stations.

 Claimant contends that: 1) He did not have a fair and impartial investigation, because the same pers Hearing Officer and imposer of discipline; 2) The discipline was not justified; 3) his record should be cleared and he be compensated for all wage loss, plus interest at 67 per annum, compounded daily.

 I
                          Award Number 19935 Page 2

                          Docket Number CL-19920


        Rule 6-A-1 of the Agreement between the parties herein, provides, in part:


              "(a) An employee who has been in the service more than 60 calendar days or when application has been formally approved, shall not be disciplined or dismissed without a fair and impartial investigation."


        Although an investigation of a violation of a rule in labor relations, is not limited to strict Rules of Evidence, yet it is akin to a trial, and the Hearing Officer occupies the position of a Judge, who must be impartial and capable of rendering a fair and unbiased decision. It is inconceivable for a Judge, in a court of justice, to be the prosecuter and the judge at the same time. Having acted as prosecutor, he cannot be expected to also act as impartial judge. Such a proce the Railroad industry, this procedure has been tolerated and approved for many years and we shall not reverse it here.


        However, in the instant case, the Carrier went much further than having the prosecutor act as judge. It divided the function of the hearing officer into two personalities -- one to hear the case and another one to dec. it. On this issue, we held in numerous awards that the separation of the powers and duties of the hearing officer, violates the concept of a "fair and impartia' investigation." (Award Nos. 6087, 7088, 8020, 14031, 17156, 17901).


              In Award Number 6087, we said:


              "Where, as here, the decision is not rendered by the official who conducted the investigation, but is made by the official

              who preferred the charges against the employee , it can-

              not reasonably be said that the employee has been afforded an

              investigation and decision in compliance with the rule."


              And, in Award Number 8020, we said:


              "The plain meaning of such a rule is: that the official who conducted the investigation, heard the evidence and saw the witnesses will evaluate the evidence and decide whether the employee was guilty or innocent of the charge."


        We adhere to the opinions in the above awards. The manner in which the investigation was held and decision arrived at was in violation of Rule 6-A-1.


        Having reached the above conclusions, there is no need to discuss the question of evidence or extent of the discipline.


i
                    Award Number 19935 Page 3

                    Docket Number CL-19920


As to the question of interest, we shall adhere to the prevailing opinions that the contract does not provide for such remedies. Disputes affecting violations of contractual provisions of labor relations agreements are not comparable to v If interest is intended, the Agreement should so provide.

        FINDINGS: The Third DLvi.sion of the Adjustmelit 5oard, upon the whole record and all the evidence, rinds and holds:


        That the parties waived oral hearing;


That the Carrier and the I:mploycs involved in this dispute are respectively Carrier anJ Employes within the me,,ning of the Railway Labor Act, as approved June 21, 1')3.'.;

 ThuL t-hip Dj~lii~lun 0i thu AdjustmunL board has jurisdiction over the dispute involved herein; and

        Carrier violated the provisions of Rule 6-A-1.


                    A W A R D


        Claim is sustained as provided in Opinion.


                            NATIONAL RAILROAD ADJUSTMENT BOARD

                            By Order of Third Division


ATTEST: ~
        Executive Secr.aary


Dated at Chicago, Illinois, this 7th day of September 1973.
          DISSEVT OF CARRIER MWERS ' TO AWARD I?0. 19935

          DDCKET 140. CL-19920


This Award is contrary to manly sound Awards of this Board insofar as the investigation on the property is concerned. The manner in which the investigation was held and the decision arrived at was not in violation of arty Rules of the Agreement.

 In this connection, many Awards were cited, but the Neutral chose to ignore them. We dissent.

                        H. F. td. Braidwood


                        P. C. Carter


                            i


                        W. B. Jones


                        ~ `~ ~Zct,4" z`L

                        G. L. Naylor


                        ~~ r21 ~% j~s.~ ~i~

                        G. M. Youhn ,