PUBLIC LAW BOARD NO. 1120
PARTIES TRE ATCHhON, TOPEKA AND SANTA F£ RAI! WAY
TO THE COWANY, COAST LINES
DISPUTZN - sad -
UNITED TRANSPORTATION UNION - ENGINEMEN
STATEMENT Request for removal of twenty f20) demerits assessed
OF CLAI4ti against the personal racurd of Engineer W. C. Comstock
as result of investigation conducted at Southern Pacific
Compsny in Bakersfield on December 39. 1971.
FIND21GS.e The parties herein are Carrier and Employe within the
meanipg of the Railway Labor Act as anaadad, and this
Board has furisdictioo.
This is a sequel to this Board's Award No. 1 is which,
for reasons stated therein, a auspensioa of Fireman I.. A. Tudor was
sustained is connection with an incident an December 16, 1971. on tracts
shared with the Southern, Pacific, when six SP units coupled to lour Sands
Fe units, and the ten-uatt train was unable to stop at a red signal. apparently
because no air cheek was ansde to ascertain it tics hoses had bean connected
between the two sets of loconvstives.
An lavestigation was conducted Deceazber Z$, 1971, at
which this Clsimsat engineer was cited for possible violattons of SP Rules
186 and 874 aenong others, along with Fireman Tudor. The Claimant
tastifiad at*tha hearing after which Fireman Tudor was found guilty, but
trlsw no guilty findings were roads with respect to the Claimant.
Only seven days later and still within the IS-day ti=ne
limitation
from the
eaaar"Ace. this Claimant was cited again but for
alleged violations other than those charged against him to the first
investigation. This time the Claimant eras accused of possible violations
o! rates mainly having to do with air brakes.
i i ao
Se was found auitty this time.
and assessed t0 demerits.
The dernartts since gave brow worked off and therefore are toot. but the
Organisation presses this appeal on grounds that legal principles of double
jeopardy end re~s ud c to are involved is the holding of the
doubly
investigation
concerning a single employee and, in its view, the
dual
investigation violated
Claimant's rights to a fair and impswtial trial under the rules.
Tschsfiaslly, "doubto
Jeopardy" mar not tae laavolved leeaoss
the charges against Claimant In the :woo proceedings were differs®t, nor is
this a matter for ZSL udtoata because of tack of complete identity of issues.
But tile require..aants of due process, particularly under the letter and spirit
of the investigation procedure under the rules.
do
not appear to have been
aast_
in its OLatard
No. 1, P. z. s. It held that
"The holding
of two
investigations for the same offense irvasj improper. " In its Award No. il,
P."8. 381 similarly. 'barred (a/ separate second disciplinary proceeding
atainst the Claimant by reason of the same accident
In Award No. 213·3
the F'Irst .Division set aside a disciplinary
penalty rssutting from a second investigation of the &am* tocident, saying:
"We believe that the carrier made an election
as to which rule to proceed under when
it first
tiled the charger. It could not laser demand
a
second investigation based oa the same evidence
and attempt to bring to another role. which merely
rephrases tile alleged first violation. "
The letter and spirit of a prompt. fair and Impartial investigation
under the rules presupposes that the Carrier will de as thorough a job as is
possible in the first instance, and bast it
will
not asarrly seek atiothar "bitr
at the appts. " by later citing other rules violations that: those alleged at first.
Hut ths.Garrier object" that it ought to has able
to
de dais when
new evidence to discovered. The courts permit reopening of cases oa this
ground, but with great reluctance. The new svidsees usually must have
sprung up entirety independently of any of the known eircurastances brought to
tight In the hearing or trial. arid often there niuat be as element of concealment.
Almost tavariaWy this
avenw to apex only
tea the accnesd and not the accuser.
. Z ..
PL
a
J 190
' 4L,),V- f,
d a
Not only- does piecemeal Investigation srnacic of oppression
and undue burden upon the accused, bat it could Import into the investigation
process
under railroad disputes adjastrtesatthe vice of 'plea bargaining,"
rstatsd to
the
testimony Sivas by an aeeusei is an earlier imarin;.
Accordingly, consistent with tire ressoning of otber public
Law boards and the First Mvislow
in
the awards cited hseeln. this alarm,
must be sastaiaed.
AWARD: Claim sustained.
JohD F. 3exnbowsr
Neutral Member
6i~s
(Carrier lteroher) (Organisation Member)
Dated[,
21
i( If
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