This Division of the Adjustment Board has jurisdiction over the dispute involved herein.
On October 21, 2002, Claimant J. W. Perkins, a Foreman holding seniority from April 14, 1980, was in charge of moving several pieces of on-track equipment to a new storage location. The process required the Claimant to communicate by radio and telephone with Dispatcher Weyhe to obtain authorization for his movements. Weyhe gave the Claimant a Form D authorizing him to travel west to the MC Connection Interlocking in Hammond, Indiana. After further radio communication with Weyhe, during which some transmissions were "cut out" or "walked on" by others using the same channel, the Claimant moved the equipment past the MC Connection Interlocking.
By letter dated October 22, 2002, the Carrier notified the Claimant that he was being removed from service pending a formal Investigation, for allegedly failing to receive proper permission from the Dispatcher to proceed past the MC Connection Interlocking. The Carrier notified the Claimant by letter dated October 23 that an Investigation would be held on October 29 to determine the facts and the Claimant's responsibility, if any, in relation to the October 21, 2002 incident. Following the Hearing, by letter dated November 7, the Carrier advised the Claimant that he was suspended from service for 30 days, beginning October 22 and continuing through November 20, 2002.
The Organization appealed the Carrier's decision, and the Carrier denied the appeal. Failing to reach a satisfactory resolution of the issues on the property, the parties submitted the dispute to the Board for final and binding resolution.
As a threshold matter, the Organization asserts that the Claimant's right to a fair and impartial Hearing under Rule 25 of the Agreement was violated because of improper conduct by the Hearing Officer. Upon review of the Hearing transcript, the Board agrees that the Hearing Officer engaged in conduct at the Hearing that was inappropriate and deprived the Claimant of the Agreement due process and fair Hearing to which he was entitled. The Hearing Officer exhibited an obvious attitude of pre-judgment toward the Claimant and the October 21 incident being investigated. Moreover, the Hearing Officer's lack of impartiality prevented the record in the instant case from being fully and fairly developed. Form i Award No. 37555
The issue presented by the October 21, 2002 incident and purported to be under investigation at the Hearing was whether or not the Claimant bad traveled through the MC Connection Interlocking without Dispatcher permission. The Hearing Officer's leading questions to witnesses demonstrated his preconceived conclusion that the Claimant had not received the required permission (E.g., "Okay, it is my understanding at that time Mr. Perkins continued past the MC Connection without a Form D, or verbal permission from the dispatcher?"). The Hearing Officer went even further in offering what amounted to conclusory testimony on his part, before the Organization's witnesses had even testified:
In addition, on several occasions during the Hearing, the Hearing Officer demonstrated impatience with the Claimant that could only have had a chilling effect on the Claimant's determination to press his defense, an example of which is the following exchange:
Although the Hearing Officer asked the Claimant at the end of the Hearing whether the Claimant felt that he had been "coerced or intimidated" by the Hearing Officer, an intimidated claimant is hardly likely to answer such a question in the affirmative.
Most troubling to the Board, however, is the Hearing Officer's refusal to play a tape of the radio conversations between the Claimant and Weyhe that constituted the crux of the issue presented by the Investigation. Several times during the Hearing the Claimant challenged the accuracy of the Carrier's transcript of the conversations. The Claimant also asserted that he had not heard some of what the Dispatcher had said to him on the radio because their conversation was stepped on by others using the same channel. The best evidence of the conversation between the Claimant and the Dispatcher, as well as the extent to which the conversation was stepped on, was the tape. The Hearing Officer stated at the Hearing that he had the tape in his possession. Nevertheless, he refused the Claimant's request to listen to the tape:
The Board finds that the Hearing Officer's conduct at the Hearing prevented the record from being fairly and fully developed in the instant case, and that therefore, the record cannot properly be relied upon by the Carrier in making a finding of guilt on the Claimant's part. The Carrier's cited arbitral precedents to the contrary are not persuasive. In the instant case, the Hearing Officer's conduct went far beyond the asking of a few leading questions that was at issue in the cited cases. The Claimant was not afforded the fair and impartial Hearing to which he was entitled, and the discipline that the Carrier assessed on the basis of that Hearing cannot be upheld.
Because the Board has found that the Claimant was not provided a fair and impartial Hearing because of the Hearing Officer's conduct, it is unnecessary to address the Organization's other Agreement due process arguments or to reach the merits of the instant case.
The Carrier will be required to pay the Claimant backpay covering the 30day suspension period, and to expunge from his personnel record all reference to the discipline resulting from the incident on October 21, 2002. Form I Award No. 37555
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.