Appeal of Engineer J.V. Gautieri, #871539, from the discipline of "dismissed in all capacities" assessed following an investigation in connection with the following:
Upon the whole record and all evidence after the June 18, 1997 hearing in the Carrier's office, Philadelphia, Pennsylvania, and study of post-hearing submissions received on or before June 18, 1997, the Board finds that the parties herein are carrier and Employee within the meaning of the Railway Labor Act, as amended, and that this Board is duly constituted by agreement and has jurisdiction of the parties and the subject matter.
The Claimant, J.V. Gautieri, has been employed by the Carrier for a period of eighteen (18) years.
On March 14, 1996, the Claimant operated train ML-440 from the Harrisburg, PA terminal. With the train in full motion, the electrical cabinet door on the lead locomotive #3284 dropped open. It struck the Claimant and conductor E.W. Malumphy.
Claimant stopped the train, called in a report and subsequently he and E.W. Malumphy were transported to the Good Samaritan Hospital in Lebanon, PA. They were examined by attending physicians. Later both men received treatment -and examination at Lebanon Magnetic Imaging.
Three days of investigation and hearings followed on October 15, 1996, October 21, 19.96 and October 25, 1996. The process developed four (4) volumes (837 pages) and one (1) volume of exhibits.
On November 1, 1996, Claimant received a Notice of Discipline from the Carrier noting dismissal in all capacities.
The Board takes note of the procedural matters raised by the organization.
The Organization claims that the treatment of the Claimant and Conductor Malumphy were disparate. Conductor was not disciplined following his hearing.
The Board cannot judge this issue of disparate treatment without a full review of the investigation and hearings held for Mr. Malumphy. We cannot know if circumstances, mitigating or otherwise differed between the two employees. The matter of disparate treatment must, therefore be set aside.
The Organization made a number of complaints regarding a fair and impartial investigation. They noted that requests for the presence of certain witnesses were denied by the Hearing Officer. They also noted that the Carrier called witnesses who were not noted prior to the Hearing, most notably Dr. Pinsky.
The Organization listed specific instances where the Hearing officer violated the fair and impartial standard. The Board has examined each of those noted sections, and finds that although the words and actions of the Hearing Officer were not fatal to. the Organization's defense, they were at times excessive, aggressive and questionable. Far too much conjecture from witnesses was allowed, he injected his own opinion too often, he testified, interfered and became sarcastic with witnesses. Hearing Officers must be seekers of truth and facts, they must avoid any temptations to control the Hearing using such tactics as noted above.
The Carrier has failed to carry its required burden of proof in the.instant Claim. They have not shown by a preponderance of evidence that the Appellant is guilty as charged.
The electrical door fell on the two men, they sustained injuries. They reported 'the matter immediately and received treatment on the day of the incident.
Investigations and Hearings followed which established a number of pertinent facts. There were no witnesses to the incident other than the two Appellants involved. Testimony taken from the Carrier's witnesses was based on theory, conjecture and opinion. Each of the witnesses raised interesting but unproven points. They inferred, guessed, and assumed too much. They were unable to establish clear and convincing evidence to carry the burden of proof. Tests made on the door and its latches were inconclusive, opinions about what might or might not have occurred were unconvincing. The testimony of Dr. Pinsky was of little worth. It is unacceptable to hear medical testimony when the care giver has never met or examined the injured party. Dr. Pinsky gave us unfounded opinion and generalized theory about a medical condition. He could not offer sufficient specifics related to the Appellant.
The Charges of falsification of circumstances, subterfuge for personal monetary gain, and failure to properly perform the duties of an engineer are unproven and must be dismissed.
The appeal is sustained. The Appellant shall be made whole for all losses sustained. He shall be returned to his former employment within 30 days of the date below.