NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION

 A. Robert Lawry, Referee

 Award Number

 Locket Number OL-c 341

 (Brotherhood of Railway, Airline and Steamship Clerks, ( Freight Handlers, Express and Station Employes PARTIES TO DISPUTE: (The Denver and Rio Grande Western Railroad Company


(1) Carrier acted in an unreasonable manner when it dismisE;ed t:-tr. David f. King from its service effective March 6, 1979, as a result of a.n investigation held on March 5, 1.979.

 Carrier shall now be required to restore Mr. King try service with all rights and privileges unimpaired and compensate him for all time lost beginning February 27, 1979, and continuing until corrected.

 'This discipline case contains serious procedural defeet-,_s, which will be the basis of the decision and fart this ...a.x

 ire will not burden the record with a discussion of the merits.
w:.. ; against the Claimant, Mr. David P. King, for being unfit for duty. a~ 21-r1ves;__1 #.E_ gation was held on March 5, 1979, copy of the transcript was made a mr-_; o1` record.

 The charging officer, McCaffery, appeared as a witness inkIu_ Pes °,kI_ gation testifying against the Claimant. This same officer, McCaffery, made t1lle decision dismissing the Claimant from his employment with the Carrier. `7-s same officer, McCaffery, made the decision on the first level of ap. a ],~-Y affirming his earlier decision, dismissing the Claimant.

 This is a flagrant abuse of "due process".

 We are mat dealing with a novice. This Carrier has a. long ~~s_:on~ of conducting itself in the labor-management arena with maturity end cons i(,° exlsertize in this field. For this reason it cannot be excused for -i'allft guard against any abridgement of any of the procedural rights written ~ ~~u~ "Lr9 collective bargaining agreement. The Carrier has within its hands t1hl>~<_ machinery of the judicial process upon the property. Consequently, it
aver backwards at every stage to give the accused every oppartiity to
 a<~'-~;s:' himself against charges which can cost him his fob and considerable =a~:~:~_ Third Division Award 17511.
 Award Number 2`42-7
 Docket Number C'G.23451

 While the discipline rule of the agreement, Rule 24, does riot contain the words "fair and impartial"' the term "investigation", which in the rule, has long been recognized in the industry as meaning a "fair and impartial hearing" with the right to representation and full oppotu nity to defend. It is inconceivable that accuser-witness McCaffery could

 possibly be "impartial" when making his decision based on his own° The same reasoning applies to the first level of appeal decision. merely confirmed his earlier judgment which was based at least in

 his n testimony: Again, it is inconceivable that this terrier, so wll
 experienced in this sensitive labor-management arena, would permit an rile

 leged due process procedure that would allow a single officer to "accuser", "witness", "Judge" and, to top it off, the "appellate

 The right of appeal is neither technical nor mechanical.. It ,

 an important and meaningful right that is not to be regarded. lightly or pored. The obvious purpose of the appeals machinery is to provide

 with rode endent consideration of his appeal at each appellate Fourth Division Award 264,2. In this case the appeals officer, could not be considered impartial or independent.

 overwhelming evidence proves that Carrier violated tine ;--;-dc

 funds.ments,i rights of Claimant to due process. This Board must the claim.

That the parties waived. oral hearing;
~. are respectively Carrier and Employee within the meaning of the Rs,ilwZ_ Labor Act, as approved June 21, 1934;

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

 That the Agreement was violated.

 Claim sustained.

 executive Secretary.

 Dated at Chicago, Illinois, this 3rd

 A W A R D

 NATIONAL RAILROAD ARJT`!,~

 By Order of Third Division

 dsy of November l98l.



Dissent to this decision is required not only because of the self-serving homile that is being passed off as reasoned judgment, but also because of the facts completely ignored by the Majority in reaching this myopic mishmash.
 This was an "under the influence" case in which the Claimant himself admitted the rule violation, and this was substantiated by corroborating witnesses.





















'"Q. Could you detect the odor of intoxicants on his person?




TIMA-L Mr. .111iO v ILUI-L~iL'Ufj, ~1- bl~ilk:,-,y ru~Lt! U-L (.1.m! Lit ;'jim
 DTS SEENr OF CARRY S TO

 AWARD 2342T, DOCKET CL-23451























Clearly,, Claimant's guilt was established on the record. However' such matters of record are not to be considered pertinent or even worthy of note when one has embarked on an evangelical mission.

of Odue process'". Yet the Majority concedes and does agree at Page 1 of
 the Award that "the procedural rights written into the collective bargaining
 agreement" is the source of Claimant's allowance of "due process"; not some
 feeling of equity or perceived judicial entitlement.


      Third Division Award 5104. - Parker:


"One of the purposes responsible for the enactment of the
 Railway Labor Act was to provide a simple and inexpensive method for the disposition of disputes between Carriers and Employes.. including those similar to the one here involved. For that reason it has come to be generally recognized that in the conduct of the hearings and investigations neither technical nor legalistic rules of evidence are binding and we have repeatedly held, that where - as here - the contract does not specify the type of evidence that can be submitted at such hearings or investigations, statements of witnesses with references to the facts pertinent to the dispute, even though unverified, are competent and therefore properly received as evi dence. (See Awards Nos. 19$9, 2746, 2770, 2772, 3985, 4142, 4154 and 4251) .'

 "The guarantee of due process found in the 5th Amendment, and
 in the 14th Amendment, to the Federal Constitution, is intended
 to protect the individual against arbitrary exercise of govern
 mental power and does not apply to actions between individuals
 or add anything to the rights of one citizen as against another
 (see 16 C.J.S. 1149 Sec. 568; 7-2 Am. Jur. 259 Sec. 567; Davidwo
 v. Lachman Bros. Inv. Co.,, 76 Fed. 2d. 186)."

    Third Division Award 22427 - Scearce:


"We are well aware that it is not within the province of the
 Board to consider questions of equity; we are equally aware
 that questions of 'due process' are not properly before us.
 We are obliged to look to the provisions of the Agreement and
 to the record of the case at hand and will not do otherwise
 here. While we may have some reservations over the events
 leading to this point, we :Find nd basis under the Agreement to
 affirm the Claims herein." (Emphasis added)

      Third Division Award 22224 - Lipson:


"The Union has strongly objected to the search of the automobile involved, to the taking of pictures of the Claimant without his consent, and to the seizure of the bottles described above, on the basis that constitutional and other
 - 5 - D ISSEW of CARRIER

 AWARD 23427, DOCKET CL-23451
"basic rights were thereby violated. A similar argument was addressed in Award No. 51034, Docket Number FM-x+929, by a Third Division Board, with ,day S. Parker as Referee. The ward in th:-: above case observed that 'the guarantee of due process found an the 5th Amendment, and in the 14th Amendment to the reders:~ Constitution, is intended to protect the individual against arbitrary exercise of govern mental power and does not apply to actions between individu als or add anything to t'~e rights of one citizen against another (citations provided)."

 Third Division ward 22128 - Wallace:
"Careful review of the entire record in this case convinces
 this Board that Claimant has received all the due process
 rights to which he is entitled under the Rules Agreement."
 Emptaasis a.dd-ed~ .
Fourth Division Award 3490 - McBrearty:
orgy rights which an employee has during a discipline investi gation flow riot -from tire Constitution, but solely from the collective barCaini,, agreement negotiated under the Railway Labor Act. This has been firmly established by bath courts of law and this Board. [See Clark v. S.C.L., 332 F. Supp 3£0, 381 (N.D. Ga. l970); Edwards v. St.L-S.F., 361 F 2d 946, 953 (7th Cir. lg66); `third Division Award 15676; Second Division Awards 6963, 631, and 18211."

 The Majority asserts that the Carrier:
    "..,.must bend over backwards at every stage to give the accused every opportunity to defend himself against charges..."

This dictum is in error on at least two counts. First, there is no contractual reauire een~, that Carrier bend over backwards. The Carrier's responsibility is to spprithe individual of the asserted charges so that he can prepare a defense .aced to provide the individual an opportunity as pre- scribed in the contract to rebut and to submit evidence that the contentions and assertions mde in tae notice of charges are in error or that there are
 DISOF CARRIER MEMBERS TO AWARD 23457, DOCKET CL23451
other causes responsible. In this industry it is incumbent on all parties to submit all facts and evidence into the hearing record because it is that record on which the finding of guilt is made, and it is on that record that the appeal of the discipline assessed is progressed.
 Second, "every stage" of appeals reviews the record that is made. It is not an opportunity to re-try the matter de novo, but a review of the facts established and whether the discipline assessed was commensurate with the established violation. That is the contractually established appeal
 ro~cess in disciplinary matters in this industry. The Majority's dictum lacks contractual support.

        Third Division Award 16678 - Perelson:


    "We find nothing in the Agreement involves in this dispute that prescribes who shall prefer charges, conduct investigations and/or render decisions; there is no rule which specifically states that the officer conducting the hearing must render the decision or assess the discipline. See Awards 15714, 14021, 13383, among many others.


"Further, the record in this dispute indicates that the procedure followed is the established practice for the hag
 of discipline cases on this Carrier. T _ ____

 "The fact that the Superintendent rendered the decision did not preclude his acting as the appeals officer. See Award. 15714.

 "With reference to point two, this Board has held on any number of occasions that our function in discipline cases is not to substitute our judgment for that of the Carrier or to decide the matter in accord with what we might or might not have done had it been ours in the first instance to determine. We do pass
 Third Division Award 20194 - Bergman:
DISSENT OF CARRIER KUQMS TO AWARD 23457, DOCKET CL-23451
"We have examined the record and do not find any statement fee in the handling an the property that the ~-eqisian made and penalty im°oased Bras imroropr because it was made b a s rvisorvwho was a witness. It cannot now be raised for the first time, Award 17424, 19746, 19977 and Awards cited therein."

        her: there must be same evidence as opposed to suspicion or


conjecture to support such an allegation.

 Second Division Award 8367 - Wildman:
"This ward has read d considered at length the numerous
 (and sometimes conflicting) decisions discussing the problem
 of that paint at which the multiplicity of roles played by a
 hearing officer in a discipline or discharge case becomes
 prejudicial to the interests of a claimant and precludes a
 fair, gust and adequate hearing. Wisely, we think, a clear
 majority of these cases, in assessing whether minimally adequate
 due process was present or nit, look for a tangible az~d G~ecific
 relatio shi bet~reen t mu i a e
 hearing officer aid any pre.iudicial im^redimeto Clai ~ t.' 6
 defense which did, irx fact, or probablry di5i in fact. occur. We
 find no such cause and effect relationship in this case between
 the multiplicity of riles played here by the Bearing Officer and
 any significant denial of due process to Claimant.

 card its this case with re~_1_rd to any material issue different than it is had the Hearing Officer played fewer and/or different roles in the handling and processing of this case.

 "Potentially, the most serious rote conflict occurs, of course, when a hearing officer gives testimony at the very hearing he conducts (and, possibly, ultimately ,judges an appeal). While the Bearing officer in this instance did make some assertions which relate to the case d which do appear on the record, they are only occasional sand relatively unizcsparbant,· and are note in our judgment, significantly material, in nature. We conclude that this 'testimony' by the Hearing Officer was not procedurally fatal to the cause of a fair hearing for Claimant and was not prejudicial to Claimant. In

 we are of the opinion that Claimant did, in fact, receive an
adequately fair and dust hearing."
                              DISSENT OF CARRIER MEMBERS TO

                        - 9 - AWARD 23+57, DOCXLT CL-2351


        Second Division Award 8219 - L arney:


    "We first turn our attention to the procedural point as to whether or not Claimant was afforded a fair and impartial investigation. In addressing such procedural objections as those raised in the instant case, we have in numerous cases over the years reached our decisions on the case by case basis by applying the following general formula:


        "'That where there exists an objection regarding the mix of roles performed by a Carrier officer in connection with the charge against Claimant, the resulting investigation, the imposition of discipline, and the appeal process, such mix of roles must be balanced against the tenets consistent with fair play and due process. These tenets include: that claimant be properly and timely notified of the charge against him and the date, time and place of the investigation; that claimant be well represented; that claimant be alloy°°ad any witnesses of his own choosing; that claimand be given every opportunity to present any and all testimony believed to be relevant to the situation; that bath the claimant and his representative be allowed to cross-examine all witnesses; and that at the conclusion of the investigation the claimant and his representative be afforded the o-_~)portunity to express any exceptions they might have to the manner in which the hearing had been conducted.'


    "Upon a thorough review of the record and a careful weighing of the alleged procedural defects against Claimant's having been afforded dc?e process at the investigation, we conclude Claimant did in fact receive a fair and iu-cartial hearing." (Emphasis added)

                                              V


        Note: Second Division Awards ?196, 8103, 8537; First Division


Award 1730; Third Division Award 21241, and Fourth Division Award 37?0>
 In Third Division
'31though the Claimant's Guilt is not an issue in

 the fact that the Claimant is undeiablur ruily is im
 portantconside:rat;ic~ra in our
                    .


"This utter fact brings up an usual ad

 how often heard impertially - will
rein guilty. The outcome of guilvs uilt, fit, it is a big BUT - the innocent party We has possibly not been vin dicated
 dicated by the first investigation - has the opportunity pro
 vided by Rule 22(c) to prove that innocence in a 'fair and
 impartial hearing' aud thus, receive hQ jst deserts. (Emphasis ours).''
In this case the Majority not only threw out the baby vdth the
vater, but also the tub, soap ac
supposedly well informed review of the reco ,

 g,elici sm
 LABOR MEMBER'S ANSWER
 TO
 CARRIER MEMBERS' DISSENT
 TO
 AWARD 23427, DOCKET CL-23451
 (REFEREE LOWRY)

 The Dissenters complain that, "In this ease the Majorl-.. not only threw out the baby with the bath water, but also t-he tub, soap and toys."

      It is evident, however, that the Dissenters were not

deprived of all of their "toys" for they have spent some ten pages "toying with words" in order to say that they disag ree
the Award.

 Dissenters cite some fifteen Referees as though ale f them would oppose the findings and conclusions reached in Award 23427.
      Nevertheless, Award 23427 speak for itself and the on-


ly "error" therein was a typographical 17511 rather than 17311.
However, the "teaching" of both Awards 17311 and '3427 is that carriers must afford s. fair. riot an unfair. hearing:.

 then neither the harrier n®r this Board have been well serve..
 e Award is correct, the carriers` case, presented
 again in it's best light by the Dissenters, caulk not, aid
 did not, overcome the Employes' case.

 The Award is correct, and the Dissent does not detract

 therefrom, but only offers to cause mischief
 that a majority of the fifteen Referees cited by the Di

 ex°s would also have found the actions of Carrier in this ease so repugnant that they, too, would have sustained the Clay..

                                  Fletch ~ .;ao~ Meer


Third Division