By letter dated February 13, 1995, Bridge Supervisor R. F. Garrett advised Claimant that on January 13 Claimant called and requested a leave of absence due to neck problems, and that on January 16 Claimant claimed a personal injury in connection with his neck problems and attributed the injury to work performed on January 10 as a Bridgetender at Rigoiets Drawbridge on the NO&M Subdivision near New Orleans, Louisiana. Carrier's letter states that on January 17 Claimant was taken to a doctor aid all applicable injury reports were completed.
The letter advised Claimant of a formal Investigation to be held on February 22, 1995 in the lion Office at Mobile. Alabama.
Following the formal Investigation which was ultimately held on May 31, 1995, Carrier stated in a letter dated June 30 that the facts revealed that at the very least, Claimant failed to report an injury in a timely manner as mandated by CSX Transportation Safety Rule I.(I) which states: Form 1 Award No. 323$3
The Organization contends that the Carrier failed to deny the July 17, 1995 appeal within 60 days as required by Rule 26, including the provision in Rule 26(a) which provides that if the Carrier does not so notify the employee or representative in writing, the claim or grievance shall be allowed as presented.
Carrier maintains that it did make timely notification of declination of the appeal via its letter dated September 9, 1995.
By letter dated July 10,1995 Carrier notified Claimant of a second Investigation in connwith charges made with reference to the formal Investigation of May 31, 1995 and statkV
Following the Investigation which took place on August 9 and by letter dated September 9, 1995 Carrier notified Claimant of his dismissal.
In addition to its contention about Carrier's declination, the Organization maintains that contrary to the parties' February 5, 1986 Letter of Understanding, Carrier failed to furnish it with a copy of the August 9, 1995 Investigation transcript with its Letter of Decision within 34 days from the close of the Investigation.
The Organization argues that Claimant was working alone when he sustained the injury and when he received medical treatment from his personal physician, that Claimant was suspended and subsequently dismissed because he sustained a personal injury while performing his assignment, that Claimant did not receive a fair and impartial Investigation, that Carrier did not present substantial evidence to prove its charge(s), and that the discipline was arbitrary and unjust.
The Organization maintains that Carrier leveled no formal charge against Claimant as to the first Investigation and argues that Carrier did not charge Claimant with an alleged violation of its Safety Rule and that it found him guilty of an offense with which he was not charged. The Organization states that this Board and similar tribunals have consistently sustained claims involving discipline resulting from a Carrier's failure to specify [evenj a single charge within its letter instructing a charged employee to appear for a Hearing. It cites Fourth Division Award 2270, Second and Third Division Awards and Award 419 of Special Board of Adjustment No. 279.
According to Carrier, as to both suspension and discharge, Claimant was afforded fair and impartial Hearings in accordance with the Agreement, and Carrier sustained its burden of producing substantial evidence of Claimant's guilt in both Investigations, the discipline was My justified, and the plural errors alleged by the Organization did not occur. Form I Award No. 32383
Carrier maintains that it properly suspended Claimant for delay in making an injury report and cites decisions in support of that position. Carrier disputes the Organization's argument concerning a Letter of Understanding establishing a deadline for furnishing a copy of the transcript and maintains that even if there were a failure to timely provide the transcript, that has been held not to be a fatal error. Carrier maintains that it timely responded to the Organization's appeal of the 10-day suspension.
During the Investigation the Organization timely raised the contention that the Carrier did not provide notice of the charge or charges against Claimant and that the vagueness of the charge letter made it "impossible" to prepare a defense. Fourth Division Award 2270 states that timely and adequate notice of the charge or charges against the accused is a part of due process of law. We are unable to find in Carrier's February 13,1995 letter to Claimant any allegation of a violation of Rule or Agreement or of any requirement imposed upon employees by Carrier.
In this instance, we find that because of Carrier's failure to give Claimant notice of any particular charges) being made against him, this claim must be sustained on the basis of a violation of the due process notice to which Claimant was entitled under the applicable precedents. The failure to specify a charge deprived Claimant of knowledge of the misconduct of which he was being accused. See Third Division Award 19642. Claimant was entitled to that notice in order to prepare his defense. Form I Award No. 32383
We do not attempt to determine the validity of the Organization's argument that Carrier lacked substantial evidence to sustain the disciplinary action, or of the Organization's other procedural objections. The Organization's claim of lack of a fair and impartial Hearing focused upon the alleged lack of a specific charge.
Carrier's September 9, 1995 letter to Claimant refers to the formal Investigation held on August 9, cites CSX Transportation Operating Rule 501, and contends that statements made by Claimant at the Investigation held on May 31, 1995 were not consistent with the facts revealed regarding incidents during the period January 10.17, 1995 and Claimant's alleged personal injury, and that Carrier's review of the transcript revealed that Claimant falsified his statement of the facts under investigation.
The Organization raises its objection about failure to timely furnish the typewritten transcript and argues that Carrier failed to afford Claimant a fair and impartial Investigation on August 9, 1995. The Organization points out that Carrier declined to permit Claimant's wife, a witness at the first Investigation, to testify at the second Investigation.
The Organization asserts that Conducting Officer K. L. Johnson, Jr. did not act as an impartial fact-finder and demonstrated prejudice against Claimant during the Investigation, denying Claimant his contractual right to a fair and impartial Hearing. The Organization also maintains that Carrier failed to prove the charge and that Carrier's dismissal of Claimant was arbitrary and without just and sufficient cause.
We carefully reviewed the August 9, 1995 transcript of Investigation. In summary, our review indicates that in important respects, Conducting Officer Johnson did fail to af1trd Claimant a fair and impartial Hearing. The Organization objected to the Condo Officer's failure to allow Claimant's wife to testify. Carrier's July 10, 1995 letter to Claimant provided that Claimant (mightl bring any witness who may give testimony. Conducting Officer Johnson responded to Organization Representative E. R Brassell:
In the opinion of the Board. the above quotation shows a prejudgment of the potential testimony of Mrs. Crain on the part of Conducting Officer Johnson. The Conducting Officer was not in a position to state what Mrs. Crain would have testified to, or the weight, if any, to be accorded that testimony, prior to hearing it. There is no indication that the testimony would have been irrelevant to the issue under investigation. In addition, the above interchange suggests that Carrier was selective as to the witnesses who would be presented, and is contrary to the well-recognized principle that Carrier is to conduct a fair and impartial Investigation.
The Organization attempted to enter into the transcript a copy of a July 14, 1995 letter from Brassell to Cumbea requesting specific charges against Claimant. Conducting Officer Johnson, after reviewing the letter, stated that it contained discrepancies. Upon Brassell's statement that the Organization was attempting to put the letter into evidence and requesting that Johnson make it an exhibit prior to quoting from it, Johnson stated as pertinent:
material issue, that is, that the Organization requested specific charges against Claimant.
Upon Cumbea's explanation of his declination to provide [furtherl specific information at Brassell's request, Conducting Offcer Johnson stated:
Conducting Officer Johnson appeared to be taking the part of the Carrier in a manner inconsistent with Carrier's obligation to proceed impartially.
With respect to the testimony of Witness Hale, the Organization stated that it did not wish to call Hale at a particular point in the Investigation and wished to call another witness; the-Conducting Officer stated that he would not allovy that. When asked by Bbl whether he was telling Brassell that he was going to dictate the order in which the Organization called its witnesses, Johnson responded:
Although Conducting Officer Johnson stated that he would permit the Organization to call Hale, his comments indicate an adversarial attitude in his statement about "cloudtingi that issue" to the Organization's representative. The Conducting Offcer called Hale as a witness later in the Investigation.
Brassell for the Organization entered an objection on the basis that the Organization had not had an opportunity to review all of the evidence that had been Form 1 Award No. 32383
available for some time, stating that it had "just been pushed on us" and that the Organization would like a postponement of the Hearing to give it an opportunity to review all of the material and prepare an adequate defense. Johnson responded that the objection was noted, but that the Carrier would continue with the Investigation.
When Organization Representative F. N. Simpson was questioning Carrier Witness Garrett, Conducting Offcer Johnson interjected to make an observation that Witness Henry was there; the question pertained to Garrett's furnishing a statement from Witness Henry. In response to Brassell's objection to Johnson's answering the question for Garrett, Johnson stated that Henry was present and could be questioned and that "To pursue that tine of questioning (of Garrett] is irrelevant to the facts at hand," indicating a prejudgment as to where the questioning might lead.
When Simpson asked that a handwritten note by Garrett be put in the record, Johnson responded:
Claimant was then permitted to testify that the weather was "very calm" at the time in question.
In response to testimony about Claimant's ability to conduct work activities, Johnson stated that Claimant said that he could not perform work activities, but could go hunting and fshing and [engage in[ those types of activities; Brassell objected that Johnson was putting words in Claimant's mouth, that the testimony was the opposite, and accused Johnson of being "very biased."
In summary, we cannot come away from our review of the transcript of testimony without the view that Conducting Officer Johnson conducted himself at times as though he were a part of the Carrier's determination that Claimant was not a credible witness as charged in the second Investigation. That constitutes a prejudgment of the issues, an improper entanglement of the Conducting Officer with the Carrier's position on the merits of the case, and, overall, a failure to accord the Claimant a fair and impartial Investigation. These conclusions call for sustaining the claim. See First Division Award 20094, Second Division Award 6795, Award 119 of Special Board of Adjustment No. 279.
This Board, after consideration of the dispute identified above, hereby orders that an award favorable to the Claimant(s) be made. The Carrier is ordered to make the Award effective on or before 30 days following the postmark date the Award is transmitted to the parties.