It was transparently clear that none of the direct witness accounts or documentary evidence supported the charges against the Claimant. To the contrary, all of that evidence served to exonerate the Claimant. Consequently, the Carrier set about amassing a record to convict the Claimant by employing a purported expert to conduct a reenactment. But that reenactment was suspect from start to finish and ultimately fatally flawed for at least four reasons. First, the reenactment was suspect from the outset because it was conducted without the knowledge or participation of the Union or any of the four (4) employes who were actual participants in and eyewitnesses to the incident purportedly being reenacted.

Second, the purported expert who conducted the reenactment and submitted a written opinion on which the Carrier relied was no expert at all. To the contrary, he was a civil engineer and there was no evidence that he had any training, education or professional experience in the relevant field of biomechanical engineering or accident investigation.

Third, there was no evidence that the methodology employed by the so-called expert was generally accepted in the biomechanical engineering field or subject to peer review. To the contrary, that methodology was transparently invalid on its face. For example, while the expert purported to have based his opinion on "anthropometric testing", he never performed any measurements of the Claimant, much less the obviously critical measurement of the Claimant's seated height. Indeed, the entire reenactment reminds one as nothing so much as the Keystone Kops off on one of their comic capers. The test driver was substantially shorter than Mr. Kawa and testified that, "I was ready for

"it knowing that I was going over it and I still went for a pretty good ride." (Tr.P.165). In other words, the whole reenactment was at best a parody of real science because the test driver was able to consciously or subconsciously brace himself for the jolt. And, while the so-called expert purported to have taken precise measurements at the moment of impact, those measurements were taken

Finally, the junk science opinion paper submitted by the so-called expert was presented at the hearing as naked hearsay. That is, over the vociferous objection of the Union, the hearing officer allowed the Carrier to enter the opinion paper into the record even though its author was not present for cross-examination as to his credentials or methodology. And, to make matters worse, the Carrier failed to even inform the Union of the existence of the opinion paper, much less provide a copy, in advance of the hearing. This was a blatant case of prosecution by ambush and any fair reading of the transcript establishes that the Claimant did not receive a fair and impartial investigation.

While due process is a flexible concept, it is transparently clear that Mr. Kawa was denied both procedural and substantive due process by any definition of those terms. In a paper delivered at the 2009 Annual Meeting of the National Academy of Arbitrators, Professor John B. LaRocco, a veteran rail industry arbitrator, provided this simple definition of due process:

"*** Due process means fundamental fairness. We will only have confidence in and defend a procedure that guarantees fairness to the parties who have a stake in the outcome of the dispute. Thus, I will analyze railroad hearings according to universal notions of fundamental fairness, starting with disciplinary hearings."E

Professor LaRocco also pointed out that the ultimate guarantors of due process protections in

"The intent of the hearing is to develop the truth `regardless of the result to either party ....' Lazar at 229. The check on a hearing officer amassing a record disproportionately in favor of the carrier's disciplinary sanction is the appeal. The Adjustment Board or a Public Law Board can reverse the discipline on the basis that the collective bargaining agreement was violated because the carrier deprived the employee of a fair and impartial hearing without addressing the merits of the discipline. The carrier can accumulate overwhelming proof that the employee committed the charged offense, but if the carrier denies the employee contractual due process, the discipline is expunged. Lazar at 19." (LaRocco at P.5)

In this case, the claimant was denied both procedural and substantive due process by the Carrier and this Board failed miserably in its duty to protect those fundamental rights. Indeed, the Board failed to even address any of the multiple procedural and substantive due process deprivations that were vigorously raised by the Union and instead swept them all aside with a truly incredible deferral to the right of the hearing officer to make credibility determinations even though there was no valid evidence, much less substantial evidence, to support those determinations.

To adopt the notion that Carrier hearing officers have an unfettered right to make credibility determinations that are not subject to stringent review by Section 3 tribunals is to adopt the notion that all railroad industry discipline hearings are a cruel sham, just as the hearing in this case was a sham. But the better reasoned awards have recognized that Carrier officers do not have such unfettered rights. This principle was clearly enunciated by Arbitrator Gilbert Vernon in NRAB Third Division Award 23864:

"*** We agree that the Carrier has a right to rely on the hearing officer's assessment of credibility and the resolution of conflicts in evidence when such decisions are supported by substantial evidence. In this case, however, the above mentioned portion of the charge was not supported by substantial evidence. In regard to the petition and profane language, the supervisor's testimony differed sharply with that of three witnesses and the Claimant. The supervisor's testimony is not entitled to more weight per se. In resolving conflicts, the Carrier must rely on more than the hearing officer's right to resolve those conflicts. There must be evidence of a rational deliberation, weighing of evidence and a reasonable conclusion. The Carrier must clearly show reliance on factors such as credibility, demeanor, corroborative evidence and other such facets of evidence." (Emphasis in bold added)

Arbitrator Vernon, who previously served as a Carrier Member of the National Railroad Adjustment Board and currently has the distinction of serving as the President of the National Academy of Arbitrators, clearly recognized that the hearing officer's assessment of credibility must be supported by substantial evidence and must show evidence of rational deliberation, weighing of evidence and a reasonable conclusion. None of those factors were present in the instant case and, therefore, I must vigorously and emphatically dissent to Award 185 of SBA No. 1048.

Respectfully submitted,

i

T'mothy W. eke

Employee W. eke

CARRIER MEMBER'S REPONSE TO THE

EMPLOYEE MEMBER'S DISSENT

TO

AWARD 185 OF SPECIAL BOARD OF ADJUSTMENT NO. 1048

The Organization's Dissent wrongly asserts that the Board ignored all of the direct evidence in upholding the dismissal, thereby constituting "a travesty of both procedural and substantive due process." To the contrary, the Board carefully and correctly weighed all of the evidence presented, including any relevant testimony which the Organization deems favorable to the Claimant. In giving proper consideration to all of the direct and circumstantial evidence, including assessing credibility where necessary, the Board correctly determined, consistent with the arbitral standards for burden of proof and rules of evidence, that the recorded substantiated the Claimant's guilt of the precise charge.

The Organization's recognition that the direct evidence as a whole supports the Claimant's guilt is evident in that the Dissent only points to selective passages in the testimony of the witnesses, with respect to confirming that the Gang Truck did hit a rough transition on the bridge, and to the Claimant's testimony only to the extent that he ultimately complained of pain, sought medical attention and was initially diagnosed with a cervical sprain. The Dissent conveniently omitted that although the Claimant reported that "his head jammed against the ceiling of the truck," none of these same witnesses saw the Claimant's head hit the ceiling of the vehicle - or that co-worker R. Ransom, who was seated in the truck directly behind the Claimant, actually stated that the Claimant's head did not hit the ceiling of the truck. Similarly, the assertion in the Dissent that "within minutes" of hitting the bump, "Mr. Kawa complained of back and neck pain" is just plain wrong. There is no direct evidence that the Claimant gave any immediate indication of an injury. In fact, the direct evidence established quite the opposite - as the Board pointed out, "the Claimant continued driving for another twenty (20) miles and then pulled over ...complaining of a sore back and neck." Accordingly, the Board did not "ignore" the statements cited in his Dissent; it simply weighed the substantial evidence elsewhere in the record, which supported the charges against the Claimant.

The Dissent's discouraging remarks regarding the allowing into the record or giving any consideration to the testimony of the reenactment or the expert witness submission is contrary to the accepted standards. Hearing Officers typically allow all reasonable efforts to establish the facts - such material is accepted into the record and afforded whatever weight is appropriate based on the character and reliability of the information. The reenactment, while not necessarily definitive standing on its own, was of some relevance with respect to the possibility of the incident occurring as alleged, just as were details regarding the type of seat in the Gang Truck, whether it had been properly installed, its position and whether the Claimant wore his seatbelt. The expert witness submission was merely a documentation of all these details. The Board did not accept that information in a vacuum; rather it weighed that evidence along with all of the other, including the eye-witness statement that the Claimant's head did not hit the ceiling of the truck versus the Claimant's report that he "jammed" his head against the ceiling.

The Dissent's attempt to portray the decision as an adoption of "the notion that Carrier hearing officers have an unfettered right to make credibility determinations that are not subject to stringent review by Section 3 tribunals" further severely misconstrues the conduct of the Board in this case. As evident in the plain language of this Award, the Board took particular note of the Claimant's dubious explanation for his allegation that more than two weeks after the incident he was medically unfit to return to service despite the initial exam at the clinic excusing him for a

Carrier Member's Response to the Employee Member's Dissent

SBA No. 1048 AWARD 185

seven day period, yet he did not provide any subsequent information from a follow-up exam or
contact the Carrier in any way until after being cited to the hearing. The Claimant testified that
he did see his physician in a follow-up exam within the seven days and was told to stay off from
work for three months; however, the Claimant did not at any point in the handling provide
documentation of such exam or state his diagnosis,, and went so far as to testify that this
recommendation to remain off from work for three months was determined without ~performino
any tests . The Board's determination that it could "see no reason to disturb" the
Hearing Officer's determination that this explanation for remaining off from work lacked
credibility is certainly not inconsistent with any arbitral precedent. To the contrary, consistent
with the principles of Award 23864 (Vernon), as cited in the Dissent, the Board recognized that
the Hearing Officer's determination was based on "rational deliberation, weighing of evidence
and a reasonable conclusion." The Claimant's misrepresentation of why he failed to return to
service after seven days, not only supported part of the falsification charge, but also, certainly
further tainted the credibility of the Claimant's report that he "jammed" his head against the
ceiling, which complemented all of the evidence in support that he did not do so.

Any reasonable reading of the record and the resulting Award can only lead to one valid conclusion. Here, the Board painstakingly digested each iota of relevant evidence, carefully assessed its probative value, and properly determined that the Claimant had not been forthright in his dealings with the Carrier. Accordingly, the slip-shod review expressed in the Dissent is disturbing, and hopefully stems more from understandable disappointment and resultant venting over this regrettable circumstance of a thirty-one year employee, rather than a genuine view of the quality of the Board's determination in this case. Given the record before it, the Board had only one valid and correct determination to make, and it properly rendered that decision. I heartily concur with Award 185 of SBA No. 1048.

Respectfully submitted,

/9 -Z ZA~ __
D. L. Kerby
Carrier Member