Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 27836
THIRD DIVISION Docket No. TD-27601
89-3-87-3-357
The Third Division consisted of the regular members and in
addition Referee Dana E. Eischen when award was rendered.
(American Train Dispatchers Association
PARTIES TO DISPUTE:
(Southern Pacific Transportation Company (Eastern Lines)
STATEMENT OF CLAIM:
"This is to request that Mr. Willis be reinstated to employment with
pay for all time lost and his record be cleared of any reference to this
incident." [Carrier file 460-59-A]
FINDINGS:
The Third Division of the Adjustment Board upon the whole record and
all the evidence, finds that:
The carrier or carriers and the employe or employes involved in this
dispute are respectively carrier and employes within the meaning of the
Railway Labor Act as approved June 21, 1934.
This Division of the Adjustment Board has jurisdiction over the
dispute involved herein.
Parties to said dispute waived right of appearance at hearing thereon.
During January 1987, Claimant was working as Chief Train Dispatcher,
LW Division (CTC and OTC) at Dispatchers Office, Lafayette, Louisiana. On
January 21, 1987, the Carrier's Assistant Superintendent suspended Claimant
and gave him notice to attend a Hearing on January 30, 1987, into a charge of
allegedly sleeping while on duty at 3:58 A.M. on January 21, 1987. Following
agreed-upon postponements, the Hearing was conducted on February 3, 1987. By
Notice of February 10, 1987, Claimant was dismissed from service. The discharge was appealed without
Board for final determination.
The sole issue joined on the record before us is Carrier's alleged
departure from the requirement of a fair and impartial Hearing. In that regard, the Organization and
witnesses not to answer his questions, all in violation of Rule 25 which reads
in pertinent part as follows:
Form 1 Award No. 27836
Page 2 Docket No. TD-27601
89-3-87-3-357
"Train dispatchers shall not be discharged with
out proper hearing as provided in the following para
graphs
A train dispatcher against whom charges are prefer-
red,
...
shall be accorded a fair and impartial hear
ing before the superintendent or other designated of
ficers
....
Our review of the transcribed Hearing record shows that the Hearing
Officer was dogmatic in cutting off apparently innocuous questioning on tangential issues by Claiman
been done by allowing the witnesses to answer these questions but, on the
other hand, we have examined the transcript carefully and find no fatal error
and no deprivation of Claimant's right to examine and crossexamine witnesses
on the critical question of whether or not he was sleeping on the ,job. Any
Carrier Hearing Officer who takes it upon himself to cut off questioning of
witnesses does so at Carrier's peril. Had the Hearing officer curtailed relevant and material questi
From the record evidence developed, Carrier resolved the credibility
conflicts against Claimant and concluded from extensive eyewitness testimony
that he had in fact been sleeping on duty. We have reviewed the record and
find that it is sufficient to support this conclusion. The penalty imposed is
harsh but this was an extremely serious violation with terrible safety implications when a Train Dis
this record for disturbing the discipline assessed.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest:
Il
Nancy J er - Executive Secretary
Dated at Chicago, Illinois, this 13th day of April 1989.
LABOR MEMBER'S DISSENT
to
Award 27836 - Docket TD-27601
Referee Eischen
The Appellant in this case was not afforded the "fair and impartial"
hearing assured him by the Agreement. The Conducting Officer, on at
least three occasions, interrupted cross examination by Appellant's
Representative of Carrier's witness, to instruct the witness not to
answer pertinent questions designed to search out the motivation behind
the charge against Appellant, and to test the credibility of the witness's testimony.
Denial of the Representative's right to unhindered cross examination
is a serious procedural error. Third Division Awards 18963, 22681,
23120, and 25491.
Affording a fair and impartial hearing must take precedence over
the Conducting Officer's zeal to prove the charge.
The appeal should have been sustained without consideration of
the merits, because of the procedural irregularities referred to above.
Because this was not done, this Dissent is respectfully submitted.
61-
JL-L
Robert J. Irvin
Labor Member