PUBLIC LAW BOARD N0. 6283
_ Case No. 1 Award No. 1
PARTIES TO DISPUTE
American Train Dispatchers Department
International Brotherhood of
Locomotive Engineers
and
Norfolk Southern Railway Company
STATEMENT OF CLAIM:
Claim on behalf of Piedmont Division Train
Dispatcher C. H. Howard, requesting reinstatement and.pay for time lost following
his dismissal for conduct unbecoming an
employee in connection with his unauthorized
entry into a secured area in the Chief Dispatcher's Office, and the subsequent theft
of
Company-owned materials
on the evenings
of March 3, 4 and 7, 1999.
FINDINGS: An investigative hearing was held on April 16, 1999 to
determine the Claimant's responsibility in connection with the charge
that he entered a secured area of the Chief Dispatcher's office,
Greenville, SC, on the evenings of March 3, 4 and 7, 1999, without
having obtained proper authority to do so, and that he allegedly
stole Company owned materials while there. The Claimant was subsequently found guilty of the charge and he was dismissed from the service
on April 20, 1999. After unsuccessful efforts on the property to
settle the matter, it was advanced to this Board for resolution.
The Carrier, in arriving at its findings of guilt to the charge,
relied upon a videotape, set up because of prior thefts, taken by a
surveillance camera that had been placed in the Chief Dispatcher's
office. The Carrier submits that the videotape showed the claimant
in the Dispatcher's office and it contends that it showed him removing
the Carrier's property. The carrier points out that initially the
Claimant denied that he had entered the secured areas. After he became
aware of the videotape, the Claimant presented varying -statements ,concerning his whereabouts on March 3, 4 and 7. Moreover, the Carrier
points out that, after the videotape was shown at the hearing, the
PLB No. 6283 C-1/A-1
Page 2
Claimant again had varying accounts of his activities on the three (3)
nights. Thus, the Carrier concluded that his explanations were inconsistent and lacked total credibility. Accordingly, given the proven
offense, which is a very serious one, his dismissal from the service
was not unduly harsh.
The organization, for its part, contends that the proceedings
were not conducted in a fair and impartial manner. In this respect,
it notes that the Assistant Division Engineer, Brig A. Burgess ("Burgess")
assessed the discipline on April 20, 1999. However, the transcript of
the hearing was not available until April 28, 1999. Simply stated,
the Organization maintains that determining guilt to a charge without
a review of the hearing transcript "clearly demonstrates prejudgment
of the Claimant by the Carrier" and, therefore, the claim should be
sustained on that basis.
The Organization also asserts that the Carrier improperly included
the Claimant's prior discipline record when it disciplined the Claimant.
This issue arose because the Carrier, in Burgess' initial decision
letter of April 20, 1999, made no mention that the Claimant's prior
discipline record had been considered in arriving at the quantum of
discipline. The Organization also asserts that Superintendent John
L. Wagner ("Wagner") did not raise that issue when he denied the
Organization's appeal. The issue was presented for the first time
after the organization advanced its appeal. The Carrier in its June 22,
1999 response to the appeal stated in part:
"The evidence adduced at the hearing fully
substantiated his culpability in this matter;
and the serious nature of the offenses, in
conjunction with his prior disciplinary record,
warrants Claimant's permanent dismissal."
In sum, with respect to this question, the organization contends..
that the Carrier improperly reached a determination on the extent to
which the Claimant should be disciplined.
The Board will not address the merits of this claim because we
find that it must be sustained on due process grounds. We so hold
mainly for the following reasons.
PLB No. 6283 C-1/A-1
Page 3
With respect to the issue of discipline being assessed prior to
the review of the transcript, the Carrier maintains that the discipline
letter of April 20, 1999 was written by Burgess, who also served as the
the hearing officer at the investigation. Therefore _ he heard all of
the testimony firsthand and had all the facts necessary to make a
decision. In his role, he obviously heard and observed all of the
witnesses as they testified and could determine their credibility prior
to reading the transcript. Additionally, the Carrier has argued the
Organization failed to show how a different decision would have been
reached by Burgess if he had read the transcript before rendering his
decision.
The Carrier's arguments rest on a premise that the Hearing Officer
had a clear retentive memory and was able to remember what was relevant
and what was not.
Certainly, the Board by its decision here, does not rule out the
possibility that in some situations, when the Hearing Officer and the
Deciding official are one and the same, that a proper decision could
be rendered before review of the hearing transcript. When this issue
arises, each case must be decided on the merits of the record before
the adjudicating body. Indeed, this Board is aware that there have
been Awards in this industry where arbitrators have affirmed this
practice. We also note that the three cited precedent cases before
this Board have upheld, as we will here, the idea that the hearing
transcript serves a vital role.
There are a number of reasons why parties require a stenographic
record of arbitration hearings. The most obvious reason is that it
provides a complete and accurate record. It frees the Hearing officer
the inconvenience and distraction related to note taking, and improves
the Officer's ability to fully observe witnesses and other participants
in the hearing. Of course, it provides the only factual source for
reviewing the entire record before making a decision.
The Carrier, when it denied the Organization's contention with
respect to Burgess' failure to read the transcript before he rendered
his decision attempted to shift the burden to the Organization, stating
PLB No. 6283 C-1/A-1
Page 4
in part that "...you failed to state how a reading of the transcript
would have allowed Assistant Superintendent Burgess to render a decision different from that outlined in his letter of April 20, 1999..."
The disciplinary proceeding is under the control and direction
of the Carrier. The language of the Parties' Agreement, indeed a
basic tenet of the management process, is the principle that the Carrier will deal with its employees in an impartial fashion in accordance
with the commonly accepted standards of fairness. Here, the organization challenges the Carrier on fairness grounds and when this occurs,
the Carrier cannot shift its burden to the organization. Indeed, the
Burgess' decision letter of April 20th made no mention to what evidence
he considered vital in his determination. The Board recognizes that
he is not required to specifically state what elements he considered.
However, it is unreasonable to ask the Organization to speculate on
what factors Burgess considered when he arrived at his decision.
The case at hand resulted in a hearing transcript of ninety-two
(92) pages. A number of complex substantive issues were raised during
the hearing, some of which were crucial in reaching a final determination about the Claimant's guilt.
While this Board does not in any sense demean Burgess' ability
to remember the testimony, given the nature of this case, it is highly
unlikely that Burgess' memory was so good that he could weigh all the
relevant testimony, facts and exhibits in the manner contemplated by
the notion of a fair and impartial process. _See, among others:
First Division Awards No. 25043, Referee Dennis; No. 24874, Referee
Wesman; No. 24935, Referee LaRocco and PLB No. 6040, Award No. 13,
Referee Eischen. These Awards affirm our position on the key procedural issue in this case.
In summary, while we have fully considered the arguments presented
in the Carrier's submission as well as its strong advocacy before this
Board, given the nature of this case and the issues presented, a review
of the complete record was required. The hearing transcript is crucial
to this review to establish a conclusion that there was substantial
evidence to support the discipline assessed.
PLB No. 6283 C-1/A-1
Page 5
In conclusion, the Deciding official erred because he rendered a
decision before he had the written record of the investigation before
him. His actions deprived the Claimant of due process.
With respect to the remedy, the Claimant has been granted a
disability annuity by the Railroad Retirement Board, effective March
8, 1999. Accordingly, the question of reinstatement and back pay are
moot. However, the Board directs that whatever records there may be
with respect to this case be purged from the Carrier's (and the Organization's) archives.
AWARD
As specified in the Findings.
P. G. Piserchia Eckehard Musig D. M.
VO z //
Carrier Member Neutral Mexer organization Meml/er
Dated:
2-Z-
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