Claim is hereby made on behalf of Conductor Kenneth D. Fiiipiak ("Claimant") that the utanmited discipline he received on January 15, 1999 resulting in his unjust removal from service be expunged from his personal record and that he be paid for all time lost. Further, that he be reimbursed for all medical costs incurred as a result of the harassment and intimidation against him by the Carrier.
The Board after hearing upon the whole record and all the evidence, fords that the parties herein are the Carrier and Employee, respectively, within the meaning of the Railway Labor Act, as amended; that this Board is duly constituted under Public Law 89-156 and has jurisdiction over the parties and dispute involved herein; and that the parties were given due notice of the hearing thereon.
For purposes of expediting the adjudication process, the neutral member of the Board shall render an interim, albeit binding, ruling in this case as indicated hereinbelow. A subsequent explanatory opinion on the procedural and substantive issues that are involved in the Claimant's case will be issued by the Board. t
Claimant was dismissed from service by the Carrier on January 15, 1999, resulting from an investigation which was triggered following his removal from service on the charge that he allegedly gave false statements to the Carrier's Claim Agent on May 26, 1998 or allegedly gave false testimony under oath on November 3, 1998 during his deposition taken in the lawsuit between Janik v. The Belt RaihvaLCo any of Chicago. regarding the events surrounding the death of Conductor Eugene Janik on May 26, 1998. Several weeks after his dismissal, the Claimant was reinstated to service on February 26, 1998 with the understanding that he had a right to appeal the discipline assessed.
Briefly, the facts indicate that the Claimant worked as the helper on the 6:30 a.nt. East Yard Industry Assignment on May 26, 1998. The crew assigned to this job also consisted of an engineer and conductor, the latter position being performed on that day by Janik. At the start of this crew's assignrrumt, they were instructed to couple up and pull a train from the East Classification Yard to the East Departure Yard. This required the crew to couple several tracks in the East Classification Yard. At approximately 7:30 a.m., Conductor Janik instructed toe crew, via radio, to de onto Track #0 in the East Classification Yard and stretch the cars. He then told them to stop. No other radio contact was made by Jantic to his craw. After a brief lapse of time, the Yardmaster tried to contact him on the radio but received no response. The
t The procedural issues in this case, which will be dismissed in the companion explanatory opinion, pertain to the time limits governing an investigation, pre-investigation discovery rights, if any, and the removal of the Claimant from service pending the Carrier's inquiry on the charges against him. PLB No. 6365 - 2 - Award No. 2
Claimant then attempted to contact Jam'k. Receiving no response, the Claimant walked back several cars to ask Janik if he was having a problem with his radio due to a lack of radio contact After walking past three or four cars, the Claimant found Janik coupled between the cars and immediately called for help and medical assistance. Shortly thereafter, medical assistance arrived, and the Claimant was instructed to separate the cars, which he did. Janik was fatally injured in this accident.
Claimant discovered Janik coupled between the cars at 7:51 a.m. Four hours later at 11:51 a.m., he gave a recorded statement to Roy W. Gelder, the Carrier's Director of Risk Management and Planning, relative to the fatal injuries sustained by lanik. During this interview, the Claimant explained the work that be and Janik performed that morning. He then briefly described how he found JaniL "I looked and Gene was facing me and he was coupled up and there was no question about it, he was dead."""2 Toward the end of this interview, the Claimant finally admitted that he was in "shock" and "shook up" over the incident that resulted in the death of his friend and co-worker. (Ore. Ex 10
On May 29, 1998, the Claimant signed a handwritten statement which was prepared by the attorney representing Janic's estate regarding the events surrounding this accident. In relevant part, the statement reads: "When I came on the third car I turned and Gene was looking at me. He had his arms reached out towards me and was trembling. It looked like he wanted to scream but he couldn't talk. I started screaming 'Oh no, it can't happen.' I ran to him and said 'Gene, I'm hero' Then his arms started to drop and his eyes closed, It sounded lice a gasp. I knew he was dead." (Ore. Ex 11. ) On November 3, 1998, the Claimant gave testimony in a sworn deposition which was taken in connection with the Jamk lawsuit. Claimant testified that Janik was still alive when he found him, that his eyes were open and did not close until "[ijt might have been like a minute or two, three minutes. He wasn't alive very long." (Org. Ex 12: Claimant's Deposition at 53) Moreover, the Claimant's testimony revealed that JanHc had been "scissored" between two misaligned drawbars rather than "coupled tqr"3 ad. at 33, 35)
The Carrier found the handwritten statement the Claimant signed and his deposition testimony inconsistent with the statement he gave to Gelder on the day of the incident and contrary to the observations of other Carrier employees at the accident site who claimed that Janik's body was coupled up at tire midsection and that the dmwbars were not misaligned. Because of these purported inconsistencies, the Carrier determined Claimant either gave a false statement to Gelder or testified falsely at his deposition which warranted his dismissal from service.
Z The transcript of the East Yard Radio Channel on May 26, 1998, from 7:00 am. to 7:55 am., regarding radio communications between the Yardmaster and the Claimant's crew indicates that the Claimant said, upon discovering Jmik, "Shin, shit, he's gone. Gate's coupled up." (Tr. 12)
3 On the same day of the accident claiming Janr7c's life, a lawsuit was filed under the Federal Employers' Liability Act ("FELA") on behalf of the decedent's estate against the Carrier in the US. District Court of the Northern District of Illinois alleging negligence and seeking damages in the sum of S2.5 million. After the Claimant had been deposed, an amended corrtplaint was filed against tire Carrier setting forth a "survival carat, " and alleging a violation of the Safety Appliance Act. In this regard, the damages now sought in the lawsuit were increased to a total of $6.5 million. PLB No. 6365 _ 3 _ Award No. 2
Based on the foregoing findings, the Claimant's dismissal from service will be set aside and expunged from his personal employment record Further, he will be paid for all time lost as a consequence of the Carrier's misplaced disciplinary action. The compensation to which the Claimant is entitled will include the period that he was improperly, removed from service pwding the investigation as well as the periai be was in a dismissed status until the date of his return to service.
Dated at Chicago, Illinois, this 30th day of May, 2001
Claim is hereby trade on behalf of Conductor Kenneth D. Filipiak ("Claimant") that the unmerited discipline he received on January 15,1999 resulting in his unjust removal from service be expunged from hits personal record and that he be paid for alt time lost. Further, that he be reimbursed for all medical costs incurred as a result of the harassment and intimidation asst him by the Carrier.
The Board after hearing upon the whole record and all the evidence, finds that the parties beret are the Carrier and Employee, respectively, within the meaning of the Railway Labor Act, as amend; that this Board is duty constituted tinder Public Law 89-456 and has jurisdiction over the parties and dispute involved herein; and that the parties were gives due notice of the tearing thereon.
For purposes of issuing an expeditious ruling 'sn this case, the findings and conclusions set forth in the Board's Award, dated May 30, 2001, dealt exctusivety with the substantive merits. It was noted, however, that the procedural issues raised by the Organization would be discussed in a companion explanatory opinion. Specifically, these issues pertain to the tine limits governing the investigation in Claimant's case,'
t Another time limit violation the Organization raises is based on die dual contention that the Carrier failed to notify the Claimant within five days after it had information of his alleged offense and that failed to hold the investigation seven days thereafter in accordance with Article 21(c) of the Agreetneut The charge against the Claimant wars linked to the allegation that he either gave a false statement to a Carrier officer regarding the death of Conductor Eugene Jim& or testified falsely at his deposition as to what he obsczved. In this laic regard, the Cla'imant's testimony when deposed paralleled a written statement he gave to coemsei far Jan&'s estate en May 29, 1998, which purportedly differed from Mutt he told a Carrier officer who interviewed him shortly after J2m&'s death. A copy of the Claimant's May 29, 1998 written statement was apparently turned over on t09, 1998 to outside counsel representing the Carrier in the JsnOC FELA lawsuit The Carrier did not become aware of this writtea statement until November 3, 1998 when preparing fn. the Claimant's deposition.
Based an these facts as recounted try the Carrier, which the neutral member of the Board credits, no dune limit violation occurred in this irtsteuice. Whateve advance iafamation counsel far the Carrier bad cmtaping the alleged inconsistencies in Claimant's statements germane to JamWs death cannot be imputed m the Carrier. Only when !he Carrier first became aware or had direct knowledge of the Claimant's May 29, 1998 written statement did the time limits under Article 21(c) begin m run; ix., frooi November 3, 1998. Since an investigation was schechzled three days later on the alleged offense against the Claimant, the Carrier competed with Article 21(c) of the Agreement. PLB No. 6365
After a thorough review of the parties' respective arguments and companion evidence on these procedural issues, the Board finds that the Carrier committed serious, and arguably, fatal arms. Regarding the time limits, the evidence clearly shows that the Carrier denied the Organization's final appeal of this claim in an untimely marina. The Carrier had sixty days in which to answer the Organization's appeal dated August 29, 1999, which it received on August 31, 1999. Pursuant to the contractual sixty-day time limit requirement, the Carrier had until October 30, 1999 to answer the appeal in writing which should have been mailed that day. Although the Carrier's denial letter was dated October 27, 1999, which fell within the sixty-day time limit provision, the envelope containing that letter, however, was postmarked on November 2, 1999. As evidenced by the postal service postmark, the Carrier's denial letter was three days beyond the contractual time limits.
The Carrier, albeit belatedly, attempted to justify its position that the denial letter was not time bawd on the strength of an affidavit it submitted to the Board on April 18, 2001. According to this alf'rdavk given by Patrick !. O'Brien, the Carrier's Vice President, Controller and Treasurer, the afrant states that he prepared a response to the Organization's appeal letter dated August 29, 1999 which was inserted in an envelope and "placed with the Belt outbound mail bin on Friday, October 29, 1999." This affidavit cannot be credited for tire following reasons. First, the affidavit was submitted to the Board after the appeals process on the property had been exhausted. bocumauary evidence cannot be introduced at the arbitral stage of the process it' it was not considered by the parties and made part of the record in the course of handling the claim on the property. Second, an affidavit by an absent witness, as here, if offered to prove the truth of the matter asserted therein, is hearsay and bighfy suspect evideace.z The most often cited reason for excluding this evidence is the absence of the opportunity to cross-examine the "out-of-court° alant. Nor can the ruler of fact (or, in this instance, the Board) assess the quality of the aiatrt's recollection, his truthfulness or ability to intelligently convey what he might have thought happened. Simply put, a written statement cannot be relied upon to establish the entire truth of the matter, acrd in a hearing cannot be given the same weight as oral testimony in the course of which the impartial arbiter can observe the witness and which is subject to cross-examination that may give rise to urxartairmes which are prone to further inquiry. Accordingly, the evidence of record as it relates to the time limits has not been refuted by any credible proof offered by the Carrier. It is apparart, therefore, that the instant claim could have beer sustained on the basis of the contractual time-limit requirement.
With respect to "pre-investigation discovery,- the Organization maintained that to prepare for the Claimant's investigation in order to ensure that he received a fair and impartial hearing, it was entitled to
2 The Carrier made the same mistake when relying upon tire written statements by the two doctors it retained to discredit the Claimant's observation that Conductor imalc was still alive when he found him coupled between the cars, and to disprove the autopsy findings contained in the postmortem examination report of Dr. 1. Lawrence Cogan, Cook County Deputy Medical Examiner, who performed the autopsy on lanik See interim Award No. 2 (May 30, 2001) at 3. As previously noted, both dents, by doctors who only practiced general internal medicine, were not affidavits per se because they were not given under oath or notarized. Never, the Carries offered these written statements in evidence to prove the tnuh of what was asserted therein without lining subject to dross-examination. Such evidence was clearly inadmissible under the hearsay rule. PLB No. 6365 - 3 - Award No. 2
receive beforehand an array of documents in the Carria's possession. The documents the Orgrnization requested involved a copy of the tape recording and transcript of the Claimant's statement to the Carrier's Director of Risk Management and Planning on May 26, 1998 regarding the accident resulting in Janrws death; copies of all statements even by or attributed to the Claimant after May 29, 1998; a copy of the trwrsaipt of the Claimant's deposition of November 3, 1998; a copy of the transcript and tapes of the East Yard radio transmissions on May 26, 1998 between 7:10 am. and 7:55 am.; a copy of the Claimant's personnel file, and photographs of the scene of the accident where Jamk sustained his fatal mjtuics. The carrier refused to produce this documentation on grounds that no contractual language existed granting "discovery rights" to either the Organization or management. Further, rte Carrier opined that the Organization acquired copies of most of the requested documents catered into eviderxe at the investigation prior to this probe. Acceding to the Carrier, periodic recesses were granted in the course of the investigative hearing to give the Organization and Claimant ample time to exanfr the documents and photographs it did riot have the opportunity to review prior thereto.
Generally, there are no formal discovery procedures in labor arbitration. However, the deliberate withholding of requested documents and informatics until the hearing that is relevant to the matter at issue, may, in certain circumstances, provide sufficient grounds for their exclusion. While a formal investigation in the rail industry conducted internally by a Carrier employed and unilaterally designated hearing officer cannot be equated to a de novo arbiual proceeding, the procedural safeguard preserving due process and a fair and impartial hearing still control. To guarantee the famrss and impartiality of an investigation, a limited form of discovery by the Organization on behalf of the charged employee, which is an essential clement of due process, should be permitted notwitirstag the absence of contract language or a rule sanctioning the production of evidence or relevant information prior to the hearing. As noted, such discovery should be permitted in certain circumstances where the Carrier has in its possession tapes, transcripts and other documents that are germane to the acrarsation(s) or issues) subject to the investigation and of critical importance to the charged employee m mouitiag a defense against the allegations being probed. Since fahriess and impartiality are integral components of due pry, it is incumbent upon the parties to thoroughly develop, witlrout surprise, the facts as theyy relate to the matter under investigation. To arbitrarily withhold documentary and other written evidence until the investigation is held, during which the organization acrd the charged employee are allowed to recess periodically to ecamurc the evidence it had earlier requested, is palpably unreasonable. Under these circumstances, the fairness and impartiality of the investigation has been compromised, abridging the charged employee's due process rights.
Here, the Carrier resorted to this arbitrary practice and erred when denying the Oration's discovery request involving the production of documents and material that were definitely relevant to tic charge against the Claimant. In denying limited pre-investigation discovery, the Carrier compounded this error when only permitting the organization and the ClaaaraM periodic recesses during the hearing to examine some of the docurrreniary evidence for the first tim» While this two-pronged procedural error may not have been fatal to the investigative prod to which the Claimant was subjected, it, nevertheless, compromised the Claimant's entitlement to a fair and impartial hearing.
The final procedural issue raised by the Organization concerns the Carrier's action removing the Claimant from service pending the investigation. On this issue, the Organization complains that the Carrier had no contractual support to withhold the Claimant from service before the investigation was held. According to the Organtzatrion, the Carrier's action was tantamount to prejudging the Claimant's guilt on a charge that PLB No. 6365 - 4 - Award No. 2
did not warrant such a precautionary treasure of this kuxl. From the Organization's perspective, the Carrier committed a fatal error in this instance that procedurally flawed the investigative process. Contrarily, the Carrier asserted that the seriousness of the allegations warranted the Claimant's removal from service which was consistent with past practice where the charge, as shown, was equivalent to theft. Besides, the Carrier noted that the Claimant was still paid after his removal from service pending the investigation which was convincing evidence that there was no prejudgment on tie part of management.
Although the Carrier here may not have beets restricted by any provision in the parties' Agreement from withholding an employee from service who is charged with an offense or rule violation, the absence of a contractual restriction does not mean that an unfettered or absolute management right exists countenancing such selective action, notwithstanding the nature of the offense or violation. It is axiomatic in the rail industry that an accused employee will not be held firotn service pending an investigation except in extrtxneiy serious cases; eg., intoxication, theft of property, dishonesty, physical altercation at the workplace, insubordirxitiom or a major operating offense representing a continuing safty risk to the accused employee, or other employees or equipment When a situation involving any onto of these o
is alleged, the Carrier's removal of the affected employee before an investigation is held is permiUed. Mindful of these exceptions, the authority to withhold an employee from service, wbedier it be linked to a contract provision or an established practice, must be narrowly and rot fbetat>y construed in order to preserve the fairness and impartiality of the ensuing investigative hearing which is integral to the disciplinary process. This prods must gusrmdm elementary procedural safeguards to avert prejudgmem or disparate treatment.
Despite the absence of a contract provision restricting the removal of an employee from service, tile Canter in this case was governed by industry-wide practice and did not have an exclusive prerogative to withhold the Claimant from service before convening the investigative hearing. Such an industry-wide practice cannot be unilaterally usurped by an alleged contrary past practice putatively estabiislxd on the property by the Carrier without the Organization's acquiescence. For the Board to hold to the contrary under circumstances where the purported violative conduct caemot be characterized as a "major" offense, would be ignoring the perception of prejudgor precipitous action which was comparable to assessing discipline without due process. In the case at hand, the evidence does not support the carrier's removal of the Claimaru from service pending the itvestigatlom Simply put, the situation here cannot be viewed as a major offense which impelled his immediate suspension. Notwithstanding the carrier's contention, the fact that the Claimant was paid while being withheld from service cues oar lessen the perception of prejudgment on its part. The Carrier committed grave procedural dire process errors upon which the instant claim could have been sustained by the Board without consideration of the tits of the ca=3
Without minimizing the due process considerations in this case, the Board decided to entertain rte merits of the dispute because of the ramifications caused by the Carrier's action which, if left unaddressed, would
3 The record also indices that Carrier repreaeutatives, including the individual designated as the bearing officer in the Claimant's investigation, discussed beforehand the evidence that was to be presented at the hearing. A pre. investigation meeting of this kind in the absence of the Claimant and his Organization representative, which the Carrier described as "prWarwory," must be viewed as highly irregular since it tams the impartiality of the investigative per. Under such circannstances, the investigation and resultant disciplinary measure issued by the Carrier wou)d be void ab initio, PLB No. 6365 - 5 - Award No. 2
In retrospect, the Carrier could have resolved this matter nn the manom described, but, mstend, acted in bad faith when it failed to adhere to the understanding it had with the Union. By making the Claimant the target of an investigation without ample: jurisdiction, the Carrier exacerbated a horrendous situation involving the tragic death of one of its valued employees. The Carrier's questionable motivation in pursuing the investigative route can be traced to the very finding contained in the interim Award, which bears repeating:
In the final analysis, tire Board's critical assessment of the Carrier's conduct should not dissuade the Patties from Putting aside their rancor in order to heal the wounds rvsultiag from this case which would be a more fitting memorial to Conductor Eugenc Janik who lost his tile in the service of the carrier. PLB No. 6365 - 6 - Award No. 2