NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Docket Number CL-20876
(Brotherhood of Railway, Airline and Steamship
( Clerks, Freight Handlers, Express and Station
( Employes
PARTIES TO DISPUTE:
(Chicago and North Western Transportation Company
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood
(GL-7691) that:
1. The Carrier acted in an arbitrary and capricious manner
when it assessed as discipline the dismissal of Paul C. Holmes, File
Clerk in the Rates and Divisions Department, Chicago, Illinois, and
that;
2. The Carrier restore to service Mr. Paul C. Holmes and
compensate him for each day beginning May 24, 1973 and continuing
until such time that he is returned to service.
OPINION OF BOARD: Claimant herein was charged with insubordination
and discharged from all service following a hearing
on May 25, 1973. The notice of hearing date May 23, 1973 sets forth
the charge over the signature of Carrier's Vice President - Sales &
Marketing Department,. Mr. W. E. Braun, as follows:
"Insubordination - your responsibility for refusal to obey
a direct order issued by Mr. A. M. Handwerker, Director-Cost
and Budget Administration, at or about 3:57 P.M., Friday,
May lB.
You are held out of service immediately pending the investigation."
Mr. C. F. Biron, representing Mr. W. E. Braun, conducted the
hearing on May 25, 1973 and, by letter dated May 31, 1973, Mr. Braun dismissed Claimant. By letter d
the decision to Mr. Braun contending in the hearing that Claimant was not
afforded a fair and impartial investigation and alleging a violation of
Rule 21 of the controlling Agreement in connection with specificity of the
charge and handling of witnesses. By letter dated August 31, 1973
Mr. Braun replied inter alia.
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Docket Number CL-20876
"I believe the record will show that in no manner was
Mr. Holmes prejudiced or placed at an unfair advantage in
the manner in which the investigation was conducted. It
was in my opinion conducted in an extremely fair and impartial manner."
The claim was appealed through all proper channels on the property without settlement and comes to o
We note at the outset that the Organization relied in the
main upon procedural objections to the handling of the matter by
Carrier. Moreover, it is not denied that Claimant refused to obey a
direct order but it is asserted that he was "provoked" into his
misconduct by a supervisory official other than the supervisor whose
order he did not follow. Carrier flatly denies that any prejudicial
procedural irregularity prevented Claimant from receiving a fair and
impartial investigation and asserts that an unmitigated act of imsub-
ardination occurred which clearly warrants dismissal.
We have reviewed with care the record, positions, Agreement
language and Awards cited by the parties. In so doing we are cognizant of the threefold function of
1) A fair and impartial investigation was afforded Claimant;
2) Substantial evidence on the record supports a finding of culpability;
and,3) The quantum of discipline assessed is reasonable in all of the
circumstances. It is too well established to require citation that
upon an affirmative finding on each of the foregoing areas of inquiry
this Board will not substitute its judgement for that of Carrier in
discipline cases. On the other hand, if the facts and circumstances of
a particular case do not measure up with respect to each of these benchmarks then we may either modi
assessed. In this connection it should be noted that notwithstanding;
the development of record evidence of misconduct for which discipline
is warranted; if such is obtained by procedures and in circumstances
fatally prejudicial to a fair and impartial investigation then the fruit
of that investigation is tainted and loses its validity.
The Organization raises a procedural objection to thq specificity of the notice of investigation
Claimant of the nature of the charge sufficiently to enable him to prepare a defense and is not viol
13969, 17154 et al. The other procedural objection of the Organization,
however, stands on more firm footing and is in our considered judgement
sufficiently supported by the record to persuade us that Claimant was
i
i
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Docket Number CL-20876
substantially deprived of the fair and impartial investigation to which
he was entitled by Rule 21. In particular, the record shows that arrangements were made for the sequ
room a typewritten copy of his testimony. Both of these witnesses studied
this statement before presenting their own testimony, took 'heir copies
into the hearing room with them and one of them used it while giving his
testimony regarding the incidents of May 18, 1973. The net effect of
such cross-referencing of testimony was to render sequestration a nullity
and an idle gesture. Worse than this however, is that the bogus sequestration lent an aura of va
Carrier cites numerous Awards and decisions of Federal
courts for the proposition that a railroad employee questioning the
propriety of the initial hearing on the property must look to the
collective bargaining agreement for his procedural and substantive
rights of due process. See Thomas X. NYC & ST. L. 185 F. 2d 614, 616,
617; Edwards V. St. Louis - San Fran. R. Co. 361 F. 2d 946 (1966).
Rule 21 of the controlling Agreement herein provides inter alia
that " an employee shall not be disciplined or dismissed with- ,
out a fair and impartial investigation..." We need not engage in
Constitutional abstractions to hold that the mock sequestration in
the instant case substantially detracted from Claimant's contrac
tual right to a fair and impartial investigation. To uphold the
discipline imposed by Carrier in these circumstances would be to
condone such practices and this we shall not do.
On the other hand, the record excluding the tainted testimony
shows that Claimant was not blameless. Absent a reasonable belief of
injury or danger to health and safety, an employee is under an obligation to obey the orders and dir
now and grieve later."
In the peculiar facts and circumstances of this case we
shall sustain the claim to the extent of returning Claimant to
service with seniority unimpaired but without back pay.
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Docket Number CL-20876
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
Railway Labor Act, as approved June 21, 1934;
That this Division of the Adjustment Board has jurisdiction over the dispute involved herein; an
That the Agreement was violated.
A W A R D
Part 1 of the claim is sustained.
Part 2 of the claim is sustained to the extent of restoring
Claimant to service with seniority unimpaired but without back pay.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
ATTEST:
Executive Secretary
Dated at Chicago, Illinois, this 24th day of October 1975.