(Brotherhood of Railway, Airline and Steamship Clerks, ( Freight Handlers, Express and Station Employes PARTIES TO DISPUTE: (Chicago, Milwaukee, St. Paul and Pacific Railroad Company

1) Carrier violated the Clerks' Rules Agreement at Chicago, Illinois when it failed to afford employe Esther Golden a fair and impartial investigation, assessing a 30-da
2) Carrier shall be required to clear the record of employe Esther Golden and compensate her for all time lost.

 3) Carrier shall be required to pay on the total amount claimed in Item 2 above, seven percent (77) interest commencing January 29, 1972 and compounded annually until
OPINION OF BOARD: On January 19, 1972, charges were preferred against Claimant:







The Organization insists that the claims be sustained because Claimant did not receive a fair and impartial investigation. Carrier suggests that Claimant's challenge is li
The conduct of the hearing in this dispute gives the Board considerable concern.


Carrier found Claimant responsible for absence from work on January 17, 1972. Rule 25(a) of the Agreement states, in appropriate part:

        "An employe detained from work because of sickness or disability shall notify his Supervising Of possible; an employe detained from work because of sickness or personal injury to himself or to an immediate member of his family will be regarded as on leave of absence ...."


On January 17, 1972, Claimant notified the Carrier of illness. Claimant's Bureau Head testified cited Rule. Thus, when Claimant (on January 18, 1972) requested leave of absence for the 17th, it wa Auditor. At the investigation, when Claimant's Supervising Officer was questioned as to the operatio leave of absence) the Hearing Officer ruled that the question was not relevant because;

        "The charges are not the reason of her absence, but of her being absent from work on January 17, 1972."


The Hearing Officer ruled, on three occasions, that only the fact of absence on January 17, 1972 was material to the investigation, and that the reason for the absence were immaterial.

 Despite the fact that Carrier Officials specifically approved the leave for January 17, the Hearing Officer found Claimant responsible for said absence. Surely such a finding, upon the record before us, could not be sustained. We can only conclude that the Hearing Officer presumed that any absence is, in and of itself, grounds for d The Hearing Officer's finding is indicative of his handling of the investigation, and is pertinent to our consideration of the fairness and impartiality of the hearing in its entirety.

 The record establishes (and Claimant concedes) that she was tardy by 20 minutes on January 6, 1972; five minutes on January 7, 1972; four minutes on January 10, 1972 and four minutes on January 14, 1972.

 When (at the hearing) Claimant's Representative sought to inquire of the Supervisor the reasons for the tardiness, the Hearing Officer ruled such question not relevant, stating, in essence, that only the fact of tardiness was in issue.

 Claimant attempted to testify as to the reasons for being late and gave some testimony concerning busses running behind schedule and crowded conditions. When she started to explain time intervals involved, the Hearing Officer ruled that any such testimony was not relevant.
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                        Docket Number CL-20172


        On at least five occasions, concerning the charge of tardiness, the Hearing Officer ruled that only the fact of tardiness was before him, and that reasons for tardiness were not material to the charges.


        In addition, the Hearing Officer ruled that Claimant could not question a Carrier Official who was an observer at the Hearing, because he was not present to be a witness; ruled that a medical prescription concerning the absence of January 17, 1972 wa who had brought the charges against Claimant; refused to allow Claimant to develop testimony as to where she was stationed when initially hired by Carrier; and made other exclusionary rulings.


        The Hearing Officer, in assessing the penalty, considered Claimant's prior "deplorable" attendance record and warnings of disciplinary action. However, at the hearing - had ever been preferred against her in the past - the question was ruled to be not relevant! Carrier argues that introduction of Claimant's past record (at the investigation) would have been detrimental to her. But that is a determination to be made by Claimant and her Representative. If she chose to introduce potentially dangerous infor


        The Organization repeatedly objected to the conduct of the Investigation while it was in progress, and, in fact, specifically requested the Hearing Officer to disqualify himself. The request was denied. Claimant raised the question of the propriety of the investigation during the handling on the property as well as before this Board.


        Surely an employee should be allowed to explain reasons for tardiness and/or absences when charged with specific offenses. To rule otherwise would nullify, in most cases, the very purpose of an investigation. As noted in Award 19589 (Blackwell):


              "If the person accused can show that he was not responsible for the absences because of reasons beyond his control, such as illness, or other excusable reasons, he should not be subject to discipline."


        Conceding, without deciding, that there may be instances, under certain charges, where reasons for absences are not material; these charges and this record are not in such a posture. Claimant was charged with a precise absence and four (4) specific tardinesses - not a habitual absenteeism rendering her inherently incapable of


        Although we know the reason for the absence, we do not know the reason for the tardiness, nor, we submit, did the Hearing Officer. He did not know what testimony was about to be submitted concerning busses running late, time intervals, etc. nor did he know the materiality of other questions which were excluded. Certainly, a Claimant m


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                    Docket Number CL-20172


inconveniences. Possibly the reasons presented would have been insufficient to excuse the tardiness and would have suggested that the employee should have reasonably predicted delayed transportation and made alternate plans to assure timely arrival to duty. On the other hand, she may have been prepared to testify to certain practica her to establish an affirmative defense, she should have been allowed the opportunity to do so. Yet, any excuse, no matter how compelling and essentially he excluded consideration of any defense. We are not prepared to agree with Carrier that the record shows no substantive unfairness or material prejudice. A Hearing Officer's "opinion" as to relevancy and materiality can not operate to prejudice a Claimant's right to present
The conduct of Investigations has been considered recently by at least two Awards of this Board. In First Division Award 20071, Referee Seidenberg noted that a Claimant's right to a fair and impartial determination was irreparably prejudiced when his case in full as he thought it should be presented. The Referee noted that an investigation is supposed to develop and bring to light all material and significant facts.

 In Award 20014 (Lieberman) between the same parties to this dispute, the Board held;

        "The conduct of the hearings in this matter give us.considerable concern. Hearings under Agreement (Rule 22) are neither adversary proceedings nor criminal trials. As fact finding invest be conducted with utmost fairness and objectivity by the hearing officer; they must not be impeded by technical rules of evidence and must accord employees reasonable latitude in developing their defensive positions. Above all, such hearings must be conducted in such a manner that the conduct of the hearing officer is unimpeachably objective and unbiased in


We can not concur with Carrier's conclusion that any error was "technical", nor do we concede th she was absent on January 17, 1972 and tardy on four (4) other occasions. We have already noted that a Company Official approved Claimant's leave of absence. Obviously he did not feel that she was guilty. Further, Claimant was precluded from presenting her full evidence concerning the reasons that she was tardy. That evidence may have constituted an admission of guilt, or it may have been the basis for exoneration.

 Claimant was entitled to a fair and impartial hearing to present her defenses. She did not receive same.
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                  Docket Number CL-20172


It may very well be, as argued by Carrier, that Claimant's past record was "deplorable". But, that factor may only be considered after the precise charges have been established.

        We cite, with favor, the conclusion in Award 20014:


        "We regard the hearing officer's conduct in this case to constitute a serious breach of the intent of the parties as expressed in Rule 22. The right of a claimant to a fair and impartial hearing may not be impeded if the integrity of the grievance procedure is to be maintained."


        We will sustain Claims 1 and 2.


Claim 3 requests 7 percent interest on the total amount claimed. While there may be instances where an Award of interest is justified, in this case we adhere to the preponderance of the decisions of this Board and we will deny Claim 3.

        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;

 That this Division of the Adjustment Board has jurisdiction over the dispute involved herein; and

        That the Agreement was violated.


                      A W A R D


        Claims 1 and 2 are sustained.


        Claim 3 is denied.


                          NATIONAL RAILROAD ADJUSTMENT BOARD

                          By Order of Third Division


        ATTEST: Executive Secretary


Dated at Chicago, Illinois, this 15th day of February 1974.