fATIGNAL MEDIATION BOA=TD
PUBLIC LAW E02-RD, ?i0. 101
In the Matter of the Dispute
between the Parties:
Brotherhood of Locomotive )
Firemen and Enginemen )
' -. ) Claimant:
and )
3. C. Hawcins
River Terminal Railway )
Company ) Case 01
Statement of Claim: "Claim of Fireman J. C. Hawkins for reinstatement on the
board, and pay for, all time lost awaiting reinstatement (Claim dated 3/24/67).
Findings: Public Law Board
no.
101, upon the whole record and all the evidence,
finds that the Parties herein -are Carrier and Employee within the meaning of the
Railway Labor Act, as-amended, and that this Board has jurisdiction over the dis
pute involved herein.
The Parties to the said dispute waived hearing thereon.
The transcript o-f the testimony at the disciplinary proceedings,
conducted by the Carrier,' reveal that the conductor, two brakemen on Job 221,
on which the claimant was fireman and the creia dispatcher,were not called as
witnesses.
We find, after a careful examination of the transcript of the
testimony that a fatal error was committed by the Carrier in that it failed to
call the crew dispatcher as a witness at the disciplinary proceedings.
Upon reviewing the transcript we find that the Claimant testified
that he left the train at 9:15 P.M. informing the Engineer that he was goini to the
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(3 1OI
crew dispatcher's office to make a bump. He further testified that he had been
ill for the three preceediag days with sto;acli ailment and had previously gone
to the men's room four times that evening. .7e stated'that when he left the
train he went to the men's room and thereafter at 10:00 or 10:15 P.M. he went
to the crew dispatcher's window and
spoke
with
the
crew dispatcher. .
Since the Carrier contends that the claimant never attempted to
place a bump but instead deserted the train, it must be the conclusion of the
Board that the crew dispatcher was a material witness, who could have offered
substantial and vital evidence to the matter in dispute, if he had been called to
testify at the disciplinary proceedings. He was available and could have been
summoned by the Carrier. .
While it may well be that the testimony of the crew dispatcher may
not have been supportive of the Carrier's position, his testimony was material and
necessary in that area of conflict.
It is the further conclusion of the Board that, even though the
claimant himself did not call the crew dispatcher to testify, the Carrier carried
the obligation to produce the crew dispatcher as a witness, to give material testimony of those events which he witnessed.
We find support for this conclusion in Award 20094 First Division
(Referee Seidenberg), wherein it is stated:
"While' the course of the disciplinary proceedings is under the
control and direction of the carrier, nevertheless it is not
permitted to cull or select data for presentation which only tends
to demonstrate or prove the fault or wrongdoing of the employee
being tried. In this case the authority to invoke disciplinary
proceedings flows from Regulation 6-A-1 of the Agreement, which
provides:
'Firemen will not be suspended nor dismissed from service without
a fair and impartial trial . . .'
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( ( PLO ~O).
This provision is a guarantee by the carrier that it will deal inpartially with tae ea~loyee in accordance with the co. only accepted standards of fairness. It means that not only will there be
a complete investigation, but that there will also be a complete
and fair trial. And that in the conduct of that trial it will
present all the material facts - those which favor as well as those
which are adverse to the claimant - in order that it may determine
upon the full record whether the imposition of sanctions is warranted.
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The Division also holds that the engineer's testimony constituted
such a basic and essential eleent in the fact finding process,
that this testimony cannot be considered waived by the failure
of the claimant, on his own initiative, to introduce it. The
responsibility placed upon the carrier for insuring a fair and
complete trial means that it must meet this responsibility without
regard to the action or inaction of the claimant. This responsibility is particularly grave when the witness to be sl=oned
is
under the control of the carrier."
. Also see Award 16699/First Division.
One additional fatal defect in the proceedings exists in the fact
that the transcript of the disciplinary proceedings is incomplete and does not
contain a true record of all the testimony given at the hearing. During the course
of the proceedings the tape of the tape recorder ran out. The transcript contains
only such testimony as was recorded by the tape recorder but fails to contain any
record of testimony given subsequently. Neither does the transcript reveal that
the claimant made any admission .that'he had a fair and impartial hearing or that he
had no additional evidence to offer.
Although the Carrier later proffered a unilateral statement of
the unrecorded testomony, we must conclude that this statement did not cure the defect
i
careful examination of the recorded testimony' in the transcript
does not warrant the conclusion that the Carrier maintained its responsibility
to conduct a fair and impartial hearing on its claim that the claimant "deserted"
his train.
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. . .
( PLe f
O) -.
- In the light of the findings herein that defects in the disciplinary proceedings existed which prevented the claimant from receiving a fair
and impartial hearing, the claim for reinstatement on the board, and pay
for all time lost waiting reinstatement will be sustained, less any earnings
.received during the period herein involved.
Inasmuch as the findings herein require no discussion of the merits
of the claim, it is the conclusion of the Board that none should be made.
HARD: Claim sustained.
' DAVID L.
xABAKR
Impartial Chairman of
Public
Law
Board 101
Carrier Member
' 'Organization Yjem~r
Dated at Cleveland, Ohio
this 18th
day
of April, 1968.