Union Pacific Railroad Company
(Former Southern Pacific Transportation Company-Western Lines)
ARBITRATOR: Gerald E. Wallin
The Organization advanced several procedural objections that must be addressed as threshold matters before reaching the merits.
The Organization's first procedural challenge objected to the fact that Claimant was withheld from service prior to the investigation hearing. Given the potentially inflammatory nature of the drawing and the text of the parties' Agreement on this point, the Board does not find the Carrier's action to have been improper.
The Organization also objected to the hearing officer's exclusion. of the payment contract between the Carrier and the document examiner as well as the transcript of Claimant's deposition in the lawsuit involving Smith and the black co-worker. The Board's review of the transcript concerning these points reveals no improper conduct by the hearing officer. Given the attendant circumstances, his evidentiary rulings are not found to have been unreasonable.
Finally, the Organization challenged the fairness and impartiality ofthe hearing. In this regard, the Organization contended that Claimant's guilt was pre-determined by the hearing officer. It cited a question propounded by the hearing officer to Claimant beginning on page 201, line 26 in support of its challenge. The question was only the second question put to Claimant. It was as follows:
The foregoing question was not merely a slip of the tongue by the hearing officer. The objections by the Organization and the ensuing discussion that followed (through page 202, line 10) show that the hearing officer did, indeed, believe Claimant had created the drawing and wanted to know why he did so.
The transcript provides several other corroborating instances to demonstrate the hearing officer's pre-determination of Claimant's guilt. Five additional examples serve to illustrate this fact.
The first example noted took place early in the hearing before the testimony of the document examiner. The comments of the hearing officer, beginning on page 56 at line 6, reflect that he considered the document examiner to be "... our..." witness and that his testimony "... is the kev :n this." This strongly suggests the hearing officer had already taken sides with the Carrier and had embraced the anticipated testimony of the document examiner.
Second, beginning on page 61, line 18, the hearing officer similarly revealed his expectation that the document examiner would have a persuasive explanation of the method he used in arriving at his opinion.
Special Board of Adjustment No. 1127 Award No. 5The remaining examples came after the hearing officer also heard testimony to the effect that the separate investigation into the authorship of the drawing by the Yuma Police Department was inconclusive. Nonetheless, while questioning Claimant on page 210, line 33, the hearing officer said, in regard to the document examiner's opinion, that "... the evidence produced is pretty conclusive ... that you are the author of the document."
Fourth, again while questioning Claimant, from page 227, line 5 through page 229, line 13, the hearing officer reflected the role ofa prosecutor conducting cross-examination. Such an approach is inconsistent with the requirements of fairness and impartiality.
Finally, beginning on page 288, line 4, the hearing officer used leading and suggestive questions in an attempt to reconcile a 5-day discrepancy between the testimony of two witnesses concerning the chain of possession of the drawing. Indeed, the hearing officer actually told the witness what kind of an answer he "... was looking for..."
The question cited by the Organization, when taken together with the several corroborating examples discussed, compels the Board to conclude that Claimant was denied a proper hearing. Indeed, the transcript shows the hearing officer had detailed advance knowledge of the Carrier's evidence, had already taken sides with the Carrier's position at the outset of the investigation, and had pre-determined Claimant's guilt. Such an approach is entirely inconsistent with the requirement to provide Claimant with a fair and impartial hearing. The Board, therefore, has no other available recourse but to overturn the discipline and sustain the Claim.
The Board's overall finding herein is limited to the pre-determination of guilt issue. Accordingly, nothing herein should be taken as a finding that the Carrier's action constituted racial discrimination against Claimant or any other employee. As the dispute was presented to the Board, it did not ask the Board to resolve any issues of racial discrimination and the Board has not done so.
The Claim is sustained. Carrier is directed to comply with this award on or before February 15, 2002.
The transcript does not support the Board's finding the Hearing Officer pre-judged the case. Carrier believes the following quote should be kept in mind, rendered by David Lefkow on this property in Award No. 27 of PLB 5125:
As for the so-called corroborating instances of prejudgment found in the hearing, the following is offered in rebuttal:
The award argues the statement by the Hearing Officer beginning on Line 18 of Page 56 "suggests the Hearing Officer had already taken sides with the Carrier and had embraced the anticipated testimony of the document examiner." Again, the statement has been taken out of context.
In the pages prior to the Hearing Officer's statement, the Representative had alleged Claimant was being retaliated against and brought in unrelated facts concerning another employee. The Hearing Officer attempted to limit the extraneous statements in order to keep the investigation focused. He reminded the Representative that what they were dealing with was, "... the charges _against Mr. Clark as Mr. Clark being the creator and the author of this document. That's what we're here to investigate todau. Not anything as far as any law suits, any other charges whatsoever. "
The above shows the Hearing Officer was attempting to point out that all he had in front of him was a charge that Mr. Clark was the creator of the document and the purpose of the hearing was to determine if the charge was credible. Nevertheless, the Representative would not leave the subject of retaliation and continued to try to bring in facts related to a discrimination suit brought by a friend of Mr. Clark. It was only then that the Hearing Officer made the statement the award criticizes:
When fairly viewed in context, the underlined language shows the Hearing Officer was maintaining his neutrality and open to determining whether or not there was proof Mr. Clark authored the document.
Turning to the second example the award offers to show the Hearing Officer "revealed his expectation that the document examiner would have a persuasive explanation of the method he used in am vin at his opinion." This is clearly a skewed interpretation of the Hearing Offices motivation. The interpretation is not supported by the context of the statement.
Prior to the language cited, Mr. Clark asked several questions, of the charging officer (Mr. Hyatt) and before the questioning of the document examiner, as to why there was emp as~is 'on his handwriting and why his writing example was original and other peoples' were copies. Mr. Hyatt answered, -1 didn't request any- any of those records. Now, that was done by, 1 guess whoever's working with the forensic expert. But 1 didn't have anything to do with the personal records." This clearly showed Mr. Hyatt was the wrong person to ask for this information. Nevertheless, Mr. Clark would not give up on his questioning, over several pages of transcript, finally asking, ,Vlhy wasn't it okay to have machine copies of [my writing]a^ The Hearing Officer in attempting to keep the hearing going, responded:
Clearly this was nothing more than the Hearing Officer trying to explain to the agitated Mr. Clark that since Mr. Hyatt had no answer to his questions, it would be more appropriate to wai an'-ask Mr. Bertocchi, who apparently was the active party in the procedures used. There is no oun ation for the BoardTo characterize this as indicating bias toward the Carrier by the Hearing Officer.
"testimony to the effect that the separate investigation into the authorship of the drawing by the Yuma Police Department was inconclusive." The award mentions this as though to indicate the Hearing Officer was thereby ignoring a significant doubt being raised concerning the authorship of the document.
In fact, as the Carrier. Special Agent Nelson tested at Page 195, the Yuma Police did not even have the case. There was never a separate Yuma Police epa men investigation. ey were only assisting Special Agent Nelson in his investigation. It is true Mr. Nelson said on Page 188 that the results of the he pT-he received from the Yuma detective were "inconclusive". However, he was simply repeating what the detective had told him. His testimony continued at Page 194 that the Yuma police department individual he was working with told him that to get the handwriting analyzed, they would send it to the state crime lab and the delay would be significant, as opposed to taking the writing to a private firm. He stated the detective said: "_,would be- would take up to anywhere from three to six months. And 1 thought using, since they [the Carrier Law Department] did have an expert who has been known to use the techniques and can do it, that would expedite and we could find out who did it sooner." In fact, Mr. Nelson tested at Page 196/Line 12that he had informed the Yuma police detective about the private forensic expert, and the detective said 'That was good.", indicating he agreed with the Carrier's action of attempting to expedite the matter. Finally, at Page 299/Line 6, Mr. Nelson reported upon his update from the detective (at the request of the Organization). The detective told him he had not done anything with the investigation after Mr. Nelson had informed him the private expert had been retained. Therefore, the above shows there was no parallel investigation by the Yuma police to cast any doubt on the findings of the Carrier's expert witness. In this light, the Hearing Officer's statement at Page 210/Lines 32 - 35, which was not objected to by the Representative, cannot be considered prejudgment. e simply sae
The award, in citing only the underlined portion of the above quote, disregarded context to support its improper finding of prejudgment.
Fourthly, the award states 'the Hearing Officer reflected the role of a prosecutor conducting cross-examination. Such an approach is inconsistent with the requirements o fairness and impartiality." First, it is noted the Claimant's representative did not object to the questioning.' Second, the Carrier must ask, who else is going o as these questions I no he Hearing Officer? This was a serious charge involving the Carrier/Public policy against discrimination. Such serious charges require direct and straightforward questions in order to develop the facts. The Carrier is at a loss to know how else the Hearing Officer could act in this situation to develop these facts. The Hearing Officer made a statement to the Representative as to his view of his responsibilities in the investigation:
Finally, the Award states the Hearing Officer used "leading and suggestive questions", even to the extent of telling the witness "what kind of answer he '...was looking for... "'. Again, it is pointed out, the Representative did not object to the questions asked by the Hearing Officer, nor was this or e other examples brought up by the board) included in the Organization's su mission.
In this instance the Hearing Officer was trying to clarify a discrepancy in dates which had been the subject of many questions concerning when a witness, Mr. Chapman, had delivered the cartoon to Special Agent Nelson. Mr. Chapman
' As stated by David H. Brown in Award 3 of PLB 3282 on this property, "We think that if [the hearing] officer is to be held accountable as a jurist, then the advocate for a party to the investigation should be charged with the responsibility of a lawyer to protect the record:'
°o:o g o) a~ o a MNo!5vt5 o
Union Pacific Railroad Company
(Former Southern Pacific Transportation Company-Western Lines)
ARBITRATOR: Gerald E. Wallin
The Organization advanced several procedural objections that must be addressed as threshold matters before reaching the merits.
The Organization also objected to the hearing ofcer's exclusion. of the payment contract between the Carrier and the document examiner as well as the transcript of Claimant's deposition in the lawsuit involving Smith and the black co-worker. The Board's review of the transcript concerning these points reveals no improper conduct by the hearing officer. Given the attendant circumstances, his evidentiary rulings are not found to have been unreasonable.
Finally, the Organization challenged the fairness and impartiality ofthe hearing. In this regard, the Organization contended that Claimant's guilt was pre-determined by the hearing officer. It cited a question propounded by the hearing officer to Claimant beginning on page 201, line 26 in support of its challenge. The question was only the second question put to Claimant. It was as follows:
The foregoing question was not merely a slip of the tongue by the hearing officer. The objections by the Organization and the ensuing discussion that followed (through page 202, line 10) show that the hearing officer did, indeed, believe Claimant had created the drawing and wanted to know why he did so.
The transcript provides several other corroborating instances to demonstrate the heating officer's pre-determination of Claimant's guilt. Five additional examples serve to illustrate this fact.
The first example noted took place early in the hearing before the testimony of the document examiner. The comments of the hearing officer, beginning on page 56 at line 6, reflect that he considered the document examiner to be "... our..." witness and that his testimony "... is the key in this." This strongly suggests the hearing officer had already taken sides with the Carrier and had embraced the anticipated testimony of the document examiner.
Second, beginning on page 61, line 18, the hearing officer similarly revealed his expectation that the document examiner would have a persuasive explanation of the method he used in arriving at his opinion.
Special Board of Adjustment No. 1127 Award No. 5The remaining examples came after the hearing officer also heard testimony to the effect that the separate investigation into the authorship of the drawing by the Yuma Police Department was inconclusive. Nonetheless, while questioning Claimant on page 210, line 33, the hearing officer said, in regard to the document examiner's opinion, that "... the evidence produced is pretty conclusive ... that you are the author of the document."
Fourth, again while questioning Claimant, from page 227, line 5 through page 229, line 13, the hearing officer reflected the role ofa prosecutor conducting cross-examination. Such an approach is inconsistent with the requirements of fairness and impartiality.
Finally, beginning on page 288, line 4, the hearing officer used leading and suggestive questions in an attempt to reconcile a 5-day discrepancy between the testimony of two witnesses concerning the chain of possession of the drawing. Indeed, the hearing officer actually told the witness what kind of an answer he "... was looking for..."
The question cited by the Organization, when taken together with the several corroborating examples discussed, compels the Board to conclude that Claimant was denied a proper hearing. Indeed, the transcript shows the hearing offcer had detailed advance knowledge of the Carrier's evidence, had already taken sides with the Carrier's position at the outset of the investigation, and had pre-determined Claimant's guilt. Such an approach is entirely inconsistent with the requirement to provide Claimant with a fair and impartial hearing. The Board, therefore, has no other available recourse but to overturn the discipline and sustain the Claim.
The Board's overall finding herein is limited to the pre-determination of guilt issue. Accordingly, nothing herein should be taken as a finding that the Carrier's action constituted racial discrimination against Claimant or any other employee. As the dispute was presented to the Board, it did not ask the Board to resolve any issues of racial discrimination and the Board has not done so.
The Claim is sustained. Carrier is directed to comply with this award on or before February 15, 2002.
The transcript does not support the Board's finding the Hearing Officer pre-judged the case. Carrier believes the following quote should be kept in mind, rendered by David Lefkow on this property in Award No. 27 of PLB 5125:
As for the so-called corroborating instances of prejudgment found in the hearing, the following is offered in rebuttal:
The award argues the statement by the Hearing Officer beginning on Line 18 of Page 56 "suggests the Hearing Officer had already taken sides with the Carrier and had embraced the anticipated testimony of the document examiner." Again, the statement has been taken out of context.
In the pages prior to the Hearing Officer's statement, the Representative had alleged Claimant was being retaliated against and brought in unrelated facts concerning another employee. The Hearing Officer attempted to limit the extraneous statements in order to keep the investigation focused. He reminded the Representative that what they were dealing with was, "... the charges against Mr. Clark, as Mr. Clark being the creator and the author of this document. That's what we're here to investigate today. Not anything as far as any law suits, any other charges whatsoever. "
The above shows the Hearing Officer was attempting to point out that all he had in front of him was a charge that Mr. Clark was the creator of the document and the purpose of the hearing was to determine if the charge was credible. Nevertheless, the Representative would not leave the subject of retaliation and continued to try to bring in facts related to a discrimination suit brought by a friend of Mr. Clark. It was only then that the Hearing Officer made the statement the award criticizes:
When fairly viewed in context, the underlined language shows the Hearing Officer was maintaining his neutrality and open to determining whether or not there was proof Mr. Clark authored the document.
Officer "revealed his expectation that the document examiner would have a persuasive explanation of the method he used in arrtvin at his opinion." This is clearly a skewed interpretation of the Hearing Offices motivation. The interpretation is not supported by the context of the statement.
Prior to the language cited, Mr. Clark asked several questions, of the charging officer (Mr. Hyatt) and before the questioning of the document examiner, as to why there was emphasis on his handwriting and why his writing example was original and other peoples' were copies. Mr. Hyatt answered, 7
didn't request any- any of those records. Now, that was done by, 1 guess whoever's working with the forensic expert. But 1 didn't have anything to do with the personal records." This clearly showed Mr. Hyatt was the wrong person to ask for this information. Nevertheless, Mr. Clark would not give up on his questioning, over several pages of transcript, finally asking, ,V/7-Ly wasn't it
okay to have machine copies of [my writing]?^ The Hearing Officer in attempting to keep the hearing going, responded:
Clearly this was nothing more than the Hearing Officer trying to explain to the agitated Mr. Clark that since Mr. Hyatt had no answer to his questions, it would be more appropriate to wal a't nTk Mr. Bertocchi, who apparently was the active party in the procedures used. There Is no of~ation for the BoarcTT-o characterize this as indicating bias toward the Carrier by the Hearing Officer.
"testimony to the effect that the separate investigation into the authorship of the drawing by the Yuma Police Department was inconclusive." The award mentions this as though to indicate the Hearing Officer was thereby ignoring a significant doubt being raised concerning the authorship of the document.
In fact, as the Carrier, Special Agent Nelson testified at Page 195, the Yuma Police did not even have the case. There was never a separate Yuma Police Department investigation. hey were only assisting Special Agent Nelson in his investigation. It is true Mr. Nelson said on Page 188 that the results of the he pi-he received from the Yuma detective were "inconclusive". However, he was simply repeating what the detective had told him. His testimony continued at Page 194 that the Yuma police department individual he was working with told him that to get the handwriting analyzed, they would send it to the state crime lab and the delay would be significant, as opposed to taking the writing to a private firm. He stated the detective said: ",.,would be- would take up to anywhere from three to six months. And I thought using, since they [the Carrier Law Department] did have an expert who has been known to use the techniques and can do it, that would expedite and we could find out who did it sooner." In fact, Mr. Nelson tested at Page 196/Line 12 that he had informed the Yuma police detective about the private forensic expert, and the detective said 'that was good.", indicating he agreed with the Carrier's action of attempting to expedite the matter. Finally, at Page 299/Line 6, Mr. Nelson reported upon his update from the detective (at the request of the Organization). The detective told him he had not done anything with the investigation after Mr. Nelson had informed him the private expert had been retained. Therefore, the above shows there was no parallel investigation by the Yuma police to cast any doubt on the findings of the Carrier's expert witness. In this light, the Hearing Officer's statement at Page 210/Lines 32 - 35, which was not objected to by the Representative, cannot be considered prejudgment. He simply stated:
The award, in citing only the underlined portion of the above quote, disregarded context to support its improper finding of prejudgment.
Fourthly, the award states 'The Hearing Officer reflected the role of a prosecutor conducting cross-examination. Such an approach is inconsistent with the requirements o fairness and impartiality." First, it is noted the Claimant's representative did not object to the questioning.' Second, the Carrier must ask, who else is going o as ese questions I no he Hearing Officer? This was a serious charge involving the Carrier/Public policy against discrimination. Such serious charges require direct and straightforward questions in order to develop the facts. The Carrier is at a loss to know how else the Hearing Officer could act in this situation to develop these facts. The Hearing Officer made a statement to the Representative as to his view of his responsibilities in the investigation:
Finally, the Award states the Hearing Officer used 'leading and suggestive questions", even to the extent of telling the witness "what kind of answer he '...was looking for...-. Again, it is pointed out, the Representative did not object to the questions asked by the Hearing Officer, nor was this or e other examples brought up y e oar included m e Urganlza Ion s submission.
In this instance the Hearing Officer was trying to clarify a discrepancy in dates which had been the subject of many questions concerning when a witness, Mr. Chapman, had delivered the cartoon to Special Agent Nelson. Mr. Chapman
' As stated by David H. Brown in Award 3 of PLB 3282 on this property, "We think that if [the hearing] officer is to be held accountable as a jurist, then the advocate for a party to the investigation should be charged with the responsibility of a lawyer to protect the record."
ORGANIZATION MEMBER'S RESPONSE
TO
CARRIER MEMBER'S DISSENT
TO
AWARD NO. 5, SBA 1127
It has been said more 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, anyone who was the least bit familiar with the arbitration process associated with this case, would have to agree this Carrier dissent could be categorized as "EXHIBIT A" as evidence in support of such a theory. Every issue raised by the Carrier Member in the Carrier's dissent was thoroughly discussed and rejected by the Board before the decision was issued January 14, 2002.
The Carrier Member suggests we should find the Hearing Officer's initial pertinent question to the Claimant, i.e., "Why did you create such a document?°, "understandable" since there was 200 pages of testimony that purportedly determined Mr. Clark was the author of the writing on the drawing. Further, we should excuse the Hearing Officer who was untrained in a courtroom for not, instead, asking the question differently, in a manner such as, "Did you create the document?"
First, this Board should NEVER find it "understandable" for a Hearing Officer to conclude that a charged employee is guilty of an offense without hearing his/her available testimony. There is absolutely no justification for any thoughts to the contrary.
Secondly, regarding the abilities of the Hearing Officer in investigations of this nature, it should be remembered the Carrier Member pointed out to the other Board Members that Hearing Officer Thurman was one of the Carrier's better and more experienced individuals it had to take care of these responsibilities. Hence, the Carrier Member's attempt at this point to suggest something completely opposite, i.e., that the Hearing Officer was possibly less than qualified to conduct this investigation, is not only disturbing to this Board Member, it also seems the Carrier has changed its mind and now recognizes it failed to provide a Hearing Officer who would conduct the investigation in a fair and impartial manner. Not surprisingly, this is exactly what the Organization protested and the majority of the Board Members found to be the case.
As the Organization stated in its submission and during oral presentations, at no time should the Hearing Officer convey an adversarial role toward the employee charged or find an individual guilty before all the testimony, including that of the employee charged, is given and analyzed. By Hearing Officer Thurman's initial question to the employee charged, there is no doubt that he failed to conduct himself in such a manner, i.e., he failed to conduct the hearing in a fair and impartial manner as he obviously had pre-determined the Claimant's guilt.
Finally, this Board Member has one last comment that deals with the Carrier Member's observation provided at the end of his dissent concerning the Neutral of this Board. While we are all veterans of these arbitration processes, it seems indecorous to me that any Board member would attempt to bully a Board Neutral with the hope of gaining more favorable decisions in the future. Integrity is not is to be feared or suppressed. Instead it is something that should be embraced. This is especially true for the members of this tribunal as we should be concerned with doing what is right in each and every case we review, and not be concerned with merely keeping score of wins and losses.
To reiterate, before it issued its decision, this Board discussed and rejected each of the extemely strained arguments raised by the Carrier Member in the dissent as they were completely devoid of merit and logic. This Board Member is confident that those who may read the dissent in the future will, once they are familiar with the case, recognize the sophistry of the Carrier's arguments and appropriately reject them as well.