Even an Investigation involving Appendix 11 obligates the Caller to furnish a Complete transcript There to no provision against using a recorder with someone later transcribing the proceedings, but the Carrier must be sure the record is complete. In this case, almost ail of Ciaknant`s testimony is listed as inaudible. He has been deprived of his contract right to have a true and complete transcript.
in This Instance, Claimant was displaced October 10, 2004. It is not known if he attempted to displace or elected to remain furloughed because of no transportation, nor is it known it Claimant ever did secure transportation, Even with a technical violation such as hero concerned, Claimant wilt not be afforded lost earnings as this Board will not speculate upon these matters, nor does it intend to provide a windfall to an Individual who was negligent in his obligation to protect the work for which he had bean hind.
Claimant's seniority is reinstated in full, but Claimant must understand it is being done because of a technical violation and for no other reason. There is no pay far time
This Board, after consideration of the dispute identified above, hereby orders that an award favorable do the Gialmant(a) be made. The Gamier is ordered to make the award effective on or before 30 days following the date the award Is adopted.
AWARD NO. 118 OF PUBLIC LAW BOARD NO. 5850
(Referee R. L. Hicks)
It has been said mare than once that one school of thought among railroad industry arbitration practitioners is that dissents are not worth the paper they are printed on because they rarely consist of anything but a regurgitation of the arguments which were considered by the Board and rejected. Without endorsing this school of thought in general, it is equally recognized that a dissent is required when the award is not based on the on-property handling. Such is the case here.
No more accurate description of this case could be given than that quoted above. An integral part of due process in matters of this nature is to provide a true and complete transcript of what was presented as evidence during a charged employee's investigation. This Board recognizes, or should recognize, that a true and complete transcript is required for two (2) very important purposes. One, it provides a basis for determining an individual's guilt or innocence; and two, it provides a basis for the individual or the individual's representatives to appeal a negative and inappropriate decision rendered regarding the charges preferred.
To say it is "imperative" or "essential" to have a true and complete transcript is a huge understatement. Without a true and complete transcript, there can not be a valid or logical basis for rendering a decision; and an employee, for whom the Carrier issued a decision of guilt, has no legitimate way of perfecting an appeal in his/her behalf. A simpler way of saying it is, without a true and complete transcript, the employee is denied the most basic fundamentals of due process.
Within this Award, the majority states: "...this Board will not speculate upon these matters..." This statement is not only appropriate, it is logical as well. However, in the same sentence, it is stated that the Board does not "...intend to provide a windfall for an individual who was negligent in his obligation to protect the work for which he had been hired." (underscoring added) Without the benefit of an opportunity to review the testimony Organization Member's Dissent PLB NO. 5850 Award No. 178
of the Claimant and in recognition of this Board's declaration that it will not speculate upon these matters, how can this Board conclude the Claimant "was negligent?" This Board member believes there is no basis for making such a determination and contrary to its stated high standard of never speculating on such matters, the majority of this Board has done just that - determined guilt on speculation. As a result thereof, 1 must dissent in connection with the Board's decision not to sustain the Organization's claim in full.
To conclude, based on these facts and circumstances, it is this Board Member's opinion the majority of this Board has inappropriately supported the Carrier's denial of the Claimant's right to the most basic fundamentals of due process. As a result thereof, this Board will have to be satisfied, on this occasion, with only two (2) Board Member signatures on this Award because my signature, if affixed thereto, may be construed as an acceptance by the Organization that the decision rendered is appropriate, which is simply and emphatically not the case.
