THIRD DIVISION
Award No. 44632 Docket No. SG-45980
22-3-NRAB-00003-200555
The Third Division consisted of the regular members and in addition Referee Joseph Fagnani when award was rendered.
(Brotherhood of Railroad Signalmen PARTIES TO DISPUTE: (
(Consolidated Rail Shared Assets STATEMENT OF CLAIM:
“Claim on behalf of the General Committee of the Brotherhood of Railroad Signalmen on the Consolidated Rail Shared Assets: Claim on behalf of M.A. Novakowski, for reinstatement to his former position with all seniority and benefits unimpaired, compensation for all lost wages, including overtime, and any mention of this matter removed from his personal record, account Carrier violated the current Signalmen’s Agreement, particularly Rule 6 — DISCIPLINE, when it issued the harsh and excessive discipline of dismissal to the Claimant, without providing him a fair and impartial Investigation and without meeting its burden of proving the charges in connection with an Investigation held on April 10, 2019. Carrier's File No. CRSG-0042- 19D. General Chairman's File No. D-19-CR-010-1. BRS File Case No. 16156-CR(SA). NMB Code No. 173.”
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.
The Claimant was dismissed from the Carrier’s service following a formal trial in connection with the following charge:
Your conduct unbecoming an employee of Conrail for your unauthorized possession of company material, railroad ties, which you admitted during an interview on February 27, 2019.
Your conduct unbecoming an employee of Conrail when you provided false information to a Carrier Officer regarding an incident under investigation during an interview on February 27, 2019, in that you stated Supervisor Sharp gave your wife permission over the phone to take railroad ties. These occurred while you were assigned as an electronic specialist reporting for duty at 0730 AM at Livernois Yard.
The record in this case indicates that on December 1, 2018, the Carrier received a message on its Fraud and Ethics Hotline in which the caller accused the Claimant and his wife of stealing railroad ties and referred to a page on the Claimant’s wife’s Facebook page which was a photo of a driveway built with railroad ties. On February 27, 2019, two attorneys, who were also Conrail employees, interviewed several employees, including the Claimant, relative to the reported theft of the railroad ties. Following the interviews, the Claimant was removed from service and a trial was held in connection with the charges outlined above.
Both prior to the trial and at several times during the proceeding, the Claimant’s representative requested the presence of the two attorneys who conducted the interview with the Claimant and the other individuals. The Carrier denied the Organization’s request on the basis that the attorneys had just conducted the interviews and had no first-hand knowledge of the matter under investigation. Entered as Exhibit B to the trial transcript, was a summary of the interview prepared by the two attorneys. It is the Organization’s position that the Carrier’s failure to have the two interviewers as witnesses at the trial, deprived the Claimant his contractual right to a fair and impartial investigation and for this reason, the Organization argues that its claim should be sustained.
In making a determination relative to this issue, the Board has taken certain factors into consideration. First, the two attorneys who conducted the Claimant’s interview were also Carrier employees. Unlike situations involving non-employees or outside agencies, the Carrier had the ability in this case to have these individuals present at the trial. While the Carrier has taken the position that the two attorneys had no direct knowledge of the incident, the Board notes that both of the charges specifically refer to statements that the Carrier contends that the Claimant made during the February 27, 2019 interview with the attorneys. In addition, a major piece of evidence that the Carrier introduced at the trial was the summary of the interview prepared by the two Carrier attorneys. Specifically, the charges state that during this interview, the Claimant “admitted” to the unauthorized possession of the railroad ties and that the Claimant made a false statement regarding an overheard conversation between his wife and Supervisor Sharp.
When the Claimant testified at the trial, he denied that he admitted to “unauthorized possession” of the railroad ties but stated that he did admit that his wife had permission to take the railroad ties. The Claimant also denied that he told the interviewers that he had overheard any telephone conversations between his wife and Supervisor Sharp and stated that based on information from his wife, he was under the impression that she had received permission to possess the railroad ties from two of her supervisors. The Organization, in challenging the accuracy of Exhibit B, has pointed out other inconsistencies between information contained in the report with the testimony of the other interviewed employees when they were questioned at the Claimant’s trial.
The Carrier argues that there is no reason to doubt the integrity of the two attorneys who created Exhibit B. The Carrier submits that while there were some inconsistences between the report and witness testimony, this does not invalidate the report. As to the difference between the Claimant’s testimony and the information in the report, the Carrier submits that “inconsistencies in testimony must be weighed on an individual basis as part of the determination of credibility of such testimony and witnesses.” In this regard, the Carrier cited arbitral decisions that hold to the proposition that when there is a conflict in testimony of witnesses, the Carrier’s determination of credibility should not be disturbed by the Board.
While the Board does not dispute the principle that the Carrier, as the trier of facts, is in the best position to resolve conflicts in testimony, the only “testimony”
relative to the Claimant’s statements during the interview, was the Claimant’s testimony. Had the Carrier had one or both of the attorney’s present to testify at the trial, both the Hearing Officer and the Claimant’s representative would have had the opportunity to question them in depth as to the nature of the Claimant’s responses when interviewed. Perhaps had this been done, some of the purported discrepancies could have been clarified or the attorneys could have restated what was included in the report. If there was a conflict in actual testimony at that point, the Hearing Officer would have been in a position to make a credibility determination.
Based on the particular facts and circumstances present in the case at bar, the Board finds that the Carrier’s refusal to have at least one of the authors of the Exhibit B report as a witness at the Claimant’s trial, deprived the Claimant of his contractual right to a “fair and impartial trial.” Accordingly, the Board rules that the Claimant should be returned to service with seniority unimpaired and paid for time lost as provided in Rule 7-A-2 of the agreement and that reference to the discipline be stricken from the Claimant’s record.
Claim sustained.
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 15th day of December 2021.