Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD

THIRD DIVISION

Award No. 42452 Docket No. SG-42428 16-3-NRAB-00003-140041

The Third Division consisted of the regular members and in addition Referee Roger K. MacDougall when award was rendered.

(Brotherhood of Railroad Signalmen PARTIES TO DISPUTE: (

(Northeast Illinois Regional Commuter Railroad ( Corporation (Metra)

STATEMENT OF CLAIM:

"Claim on behalf of the General Committee of the Brotherhood of Railroad Signalmen on the Northeast Illinois Regional Commuter Railroad Corp. (METRA):

Claim on behalf of E. Camargo, J. DeHoyos, M. A. Gonzalez, P. Harris, D. P. Romaniszak, and A. M. Siembzruch, for compensation for all time lost and any mention of the discipline assessed them removed from their personal records, account Carrier violated the current Signalmen's Agreement, particularly Rule 53, when it assessed Claimants M. A. Gonzalez and D. P. Romaniszak five days' actual suspension and Claimants E. Camargo, J. DeHoyos, P. Harris, and A. M. Siembzruch three days' deferred suspension without providing them a fair and impartial Investigation and without meeting its burden of proving the charges in connection with an Investigation which concluded on October 10, 2012. Carrier's File No. 11-07-836. General Chairman's File No. 3-D-12. BRS File Case No. 14981NIRC."

FINDINGS:

The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds that:

The carrier or carriers and the employee or employees involved in this dispute are respectively carrier and employee 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 were given due notice of hearing thereon.

This is a case which involved unsafe actions by a number of the Claimants when using a crane and lifting heavy material onto the top of a container. Injuries transpired as a result of these actions. It is clear, that, if this Board were able to reach the merits of the case, discipline would have been sustained. However, unfortunately, this Board cannot reach that position because of procedural violations of the CBA performed by the Hearing Officer. Unlike some views, this Board does not take this to require the Hearing Officer to be unbiased. Each of us have our own biases. Further, it does not actually require the Hearing Officer to be impartial. Instead, the CBA requires that a Hearing Officer conduct a hearing in a way such that the process is fair and impartial.

It is rare in the rail industry that the conduct of a Hearing Officer is so egregious that it renders an on-the-property rail hearing not fair or impartial. Hearing Officers are not expected to be perfect. They are not trained legal counsel. Generally, they are not trained advocates. Therefore Boards, over the years, have granted considerable leeway in the conduct of such rail hearings. This leeway is unheard of in any other industry or legal proceeding. Therefore, when procedure is abused to the extent of creating a lack of fairness and impartiality in the hearing process, it is an event of note. This is one such case.

It is clear to this Board that the Hearing Officer in this case, on many occasions, descended into the proverbial hearing "battlefield" and sought to bear arms himself. The following are but a few of many more such examples.

At page 485 of the transcript in this case, the Hearing Officer proceeded as follows:

HEARING OFFICER SPARGO: No. What I'm stating is at every one of our safety meetings and the Safety Department has a real safety-related issue here at Metra, the job briefings are a necessity for the safe operation of getting the work done here at Metra. We promote job briefings at every one of our safety meetings. It's one of our main topics. And my supervisors are all supposed to stay up on top of that to insure that everybody is, indeed, conducting proper job briefings.

MR . OWENS: Well, that ' s great. But in regards to the employees today that are charged, are you alleging there is some kind of job briefing violation?

HEARING OFFICER SPARGO: Safety wasn't obviously there was something wrong with the safety.

MR. OWENS: But, again, you seem to be focused on job briefing. I don't have that in my charges.

HEARING OFFICER SPARGO: I am asking the supervisor questions, Mr. Owens.

MR. OWENS: And I am asking you a question, sir.

HEARING OFFICER SPARGO: No. There's no charge of job briefing. It's safety-related In General Safety Rules. Protect your fellow employees, I believe that's in there.

MR. OWENS: Well, that's a long way from job briefing, though. You keep talking about they were expected to conduct a job briefing at Galewood. Where is that at? Show me that in the rules. Because when you say that, it sounds like a violation, you're contending a violation.

HEARING OFFICER SPARGO: I'm talking about safety. If a proper job briefing was performed, maybe this incident wouldn't have happened.

MR. OWENS: So you are contending that that was a violation of the job briefing?

HEARING OFFICER SPARGO: I'm contending that we had a safety issue. That's what I am contending

And again at page 510 of the transcript, the Hearing Officer testifies:

HEARING OFFICER SPARGO: I agree with you. It is a extremely serious situation. And that is one of the reasons I keep bringing it up. But no, I did not specifically cite a specific rule on - as a charge. But it is a policy of Metra that job6 briefings be performed. And I'm just questioning Mr. Kroner, since it is a policy of Metra. Specifically, I can attest for the Engineering Department. Now, I don't know, but Mr. Kroner can probably attest for the other departments, that it is an Engineering policy.

And again at page 511:

HEARING OFFICER SPARGO: I'm stating that there was a problem following a company policy."

And then at page 529, he decides to enter his own evidence:

HEARING OFFICER SPARGO: All right. I'd like to read the following rules into the transcript: Employee Conduct Rule 3, Item B and D, under General Rules, employees must have a proper understanding and working knowledge of and obey all rules and instructions in whatever form issued applicable to or affecting their duties. If in doubt as to their meaning, employees must apply to proper officer for explanation. D, employees must report to the proper officer any violation of the rules or instructions, any condition or practices which may imperil the safety of trains, passengers, or employees, and any misconduct or negligence affecting the interest of the Railroad. I would like to enter that into the record as Carrier Exhibit O.

The Hearing Officer goes on for another seven pages of the transcript, entering Rules into evidence, of his own volition, for the purposes of proving a breach of the rules by the Claimants.

Finally, at pages 546-547, one of the Claimant's testified that the Hearing Officer, in his role as supervisor, some seven days prior to the hearing, but after the incident, described the incident in a safety meeting with many in attendance, as "stupid" of the charged employees to not have the outrigger down and "even stupider" for none of them to have mentioned this. This evidence is unrebutted. While this Board may not take issue with the comments about the outriggers, after seeing all of the evidence, it is a clear indication that the supervisor, who was later to become the Hearing Officer had drawn his own conclusions before hearing the evidence.

This Board has no option, based on not only those statements repeated above, but on the totality of the record, but to conclude that the conduct of the hearing by this Hearing Officer was so tainted as to render it unfair and lacking in impartiality.

AWARD

Claim sustained.

ORDER

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.

NATIONAL RAILROAD ADJUSTMENT BOARD By Order of Third Division

Dated at Chicago, Illinois, this 31st day of October 2016.