02nd ~A~TF.n RAT .,~OR~p R AT N
YS.

 BRQTiMRU00DM T O~OTYS EUrMN-RERS


                  Your conduct unbocoming an employee of Conrail when you misrepresented yourself as District Superinterdent Casofoio in order to restore yourselfto service at approximately 3:37FM on Aprii 15,1997 and then proceeded to work VMNE-70 as an Engineer on duty at 7:00PM on April 15,1997. NORAC RULES THAT MAY APPLY: D


STATEMENT OP FACTS : A. W. Scott (hereinaftwScotllclabnWrt) has

 been a locomotive engineer with the Carrier since October 4,1974. On

 April 14,1997, shortly (7:ZOFM) after going on duty at Meruchen, New

 Jersey, En&eer Scott observed SMT Jitney 4317 in the parking area, which
        413 R b~Cf , A wardNo.1433 Base No. 1


        lie perceived to be the vehicle that would be used to transport hiss and h1s cond·.xtor to Train WPIvM-70. Scott reactively entered Yardmaster

        Hoffatan's office to protast what he (sic) perceived as a safety TLL.

        According to Yardmastar Roffman, Engineer Scott became agitaW had

        aggressively moved toward the supervisor, while concurrently launching.

        into a vitriolic and disrespectful (vcsbai) barrage. A verbal conflagration

        escalated, epithets were exchanged, and ultimately Yardmaster Roffman

        crudely ordered Engineer Scott out ofhis (sic) office. Scott ignored the,

        . directive and thrust himself against the supervisor in a deEaat and intimidating (U~reatening) matter. Yardmaster Roffman responded to Scott's advance and the two men stood toe-to-toe and continued to exchange epithets and threats, until they were separated by an observer (3itney Driver E. Taylor).

        Subsequently, District Superintendent J. 7. Garofolo was contacted at his home and given a briefing of the incident. Superintendent Garofolo then directed that claimant should be summarily removed from aorvice for Conduct unbatoming.

SBA No. 894 Award No. 103 Page No. 3

 On April 15, 1997, at approximately 3:37PM, an individual who identified himself as "Joe Garofolo" called the lead crew dispatcher in the CACD Office in Dearborn, MI and authorized A. W. Scott's return to service. Pursuant to this authorization, A. W. Scott was returned to service and began working his regular 7:OOPM assignment. Later that same evening (approximately 11:15PM) Superintendent J. J. Garofolo was monitoring the operation at Metuchen Yard, via his radio, when he heard the claimant's voice during a routine transmission. Superintendent Garofolo immediately attempted to determine why Engineer Scott was working in violation of his earlier removal order, and to identify the individual who had authorized such return to service.
 He (sic) learned that the person authorizing the claimant's return to service had identified himself as "Joe Garofolo." In an attempt to identify the impostor, Superintendent Garofolo personally listened to the tape recorded conversation and opined that he believed the voice of the individual, claiming to be "Joe Garofolo", to be that of Engineer Scott.
                                            P.S

SPA No. 194
 Awed A'o.1633
 lags No. <
Accordingly, Scott was again summarily removed from service and escorted from the property. Based upon such sequence of events a Notice Of investigation, dated AprR 18.1997, was issued instructing Scott to attend a formal investigation, scheduled to be held on April 24,1997 in connection with the following charge:

                      rrr*


    "Your voadut unboeoming an employee of Corral! when you taisrepsesented yourself as District Superintendent Gamfolo in order to restore y ourself to service sl approzimuly 3:37PM on April 15,1997 and then prooaded to work RTME. 70 as as Fa&eer on duty at 7:OO?M on April 15,1997. NORAC RULES THAT MAY APPLY: D"


                      o~ls~

The formal investigation was held and concluded on April 24,1997. Following the investigation Gencral Mrnager D. R. Greer reviewed the evidence and issued his decision, stating in pertinent part as follows:

                      ··if


    "This Is Notification That You Are Being Assessed The Following Disdplnie For the Ouse shown:


    Discipline: DISMISSED IN ALL CAPACME$


    Outline of OB'ease:

.rwrr~ W : 2 P.6
 5811 No. t94
 AwardNo.1633
 Iw No. S
 Your conduct unbecoming an vmploycc of Conrail when you
 ia:srepraented yourself as District Superintendent ralofolo in order to restore 1951 =d th=
 pmetxded to work W
        elf to service at PB 70 approximately an m;fir on April t 7-.04PM on April 15.


      1997.


      TO BE EFFECIIVE:


      1_I days from the date of melpt of this nodco or as soon

      thereafter as mzy be arranged. ,


      1X1 ~m~iaray"


By IzVer dated May 8,1997, and in accordance with Article G-rnI I (k) of the B of LE Agreement, the disciplinary sanction was appealed to the highest of-ttcer of the carrier designated to handle such disputes on the property. Following such appeal hearing, claunant and his representative worn notified by leuer, dated July 8,1997, that the ubarges were found to have beta proven by substantial evidence and therefore the appeal was denied. 7hereafter, the dispute was submitted to this Board for final resolution.
 Under the whole record and all the evidence, after hearing, the Board finds that the parties herein are carrier and crnpIoyee within the meaning of the Railway Ltabor Act, as amended, and this Board is duly
 ~mario~a
 Award No. 1633
 Page No. 6

    constituted by areement and has jurlsdictiou ofthcpartics and subject matter.

    During the hearing, and throughout the appeal's process, the organIza?ion raiscd multiply procedural objections, charging the carrier with a series of contractual improprieties, each of which is averred to have independently flawed the due process protections mandated by the

    . collectivo bargzining agreement; such objections relevant to this appeal are summarized as follows:


    A. Engineer Scott u-as improperly (sunsmargy) removed from service pending a fact-funding investigation in violation of Article G-m-11, Discipline and investigation, Paragraph (b) (1).


    B. That on the day (April 23,1997) preceding the formal investigation the carricr's investigating officer covertly conducted a preliminary hearing (suborning or shaping testimony) without the claimant or orgazlizational representative being advised oz present, thereby hawing the investigative process and/or the (carrier's) wimesses' candor and objectivity.


    C. During the investigation the carrier's bearing officer abused his authority by manipulating the evidence, questions and admissions so as to deny claimant a fair arid impartial hearing.


    - D, That the carrier's deciding ofcirrl (General Mamgor D. R

    Career) should be presumed to have been pmjvdked (prejudgment) because

    of the inordinately short period of time (approxiraately four hours) between

    his receipt of uanscxipt (evidence) and issuance of decision.

3EA N0. 394 r. o
 AwmdNo.1633
 Pap No. 7
 E. The Notice of Discipline (Form G-32) was not timely (10 day)
 served as mandated by Article G-m-11.
 It will serve no useful purpose for this Board to reiterate our rationale for
 concluding that no reversible procedural error occurred during the pre
 investigation meeting, evidentiary investigation or the (final) decision
 mating process. It will suffice to incorporate, by reference, ail of our logic
 and conclusions expressed in Award No.1632-- Engineer Scott received a
 fair and impartial investigation in substantial compli=ce with the
 contractual (due process) requirements.
 YJith specific reference to the factual scenario described herein~ve,
 we are persuaded that neither Superintendent CTaiofolo, nor any other
 authorized carrier official, made the telephone call authorizing claimant's
 retum to service. The rule (Article G-m-11 (Paragraph (9)(2)), relied on by
 the organization to support their demand for claimant's remststement is as
 follows:

    When an engfneer is required to perform service during a period ofsusperuion, the balance qfsold suspension shall be eliminated.

SHANo.t9a Awed No. 1633 paLeTlo. E
Such:ule appears to focus on a situation in which actionable misconduct has been charged, investigated and a disciplinary suspension of a specific duration, has been imposed. Furthermore, in our judgment, such contract provision implies that the carrier's decision to utilize the suspended individual (employee) was an authorised and fntewioha not, most probably _ caused by an unanticipated (intervening) operational need. Ilnauthorked or negligent resrorarhe acts, particularly from unproven sources, -%ill not, vdihout more definitive proof, serve to nullify an existent and specific disciplinary suspension. 'Clearly these conditions (precedent) did not exist on April 15,1997, when the (Garofolo) impostor made the telephone call to fraudulently return Engineer Scott to active service, and atttempted to ensnare the carrier in a situation that would arguably nullify the insubordination charge.

 ThT
 The evidence offered by the carrier in support of this charge against Engiuear Scott is primarily based on the taped telephone conversation between the (C9arofolo) impostor and the lead clerk. Tile organlzatlon objects to the admission of such tape into the record; however, we consider
 SBA No. $94
 Award No. 1633

 PAP N0.9

 such objection to be specious, void of foundation and legal merit. The tape was sufficiently authenticated as an offcial company record, made and zetained in the normal course of business; furthermore, there is no a11egation oftampering oar claimed (suspicious) iwemrptioa in the chain of custody. In our judgment such a predicate would presumably qualify such evidence forjud:cfal admission, and clearly should and would be admitted in as internal (quasi judicial) invesngation process, which is administered by laymen and not strictly bound to the judicial rules of evidence and procedure. The most serious (due process) danger during this type of investigation is trot that the fact-finder will allow too much Irrelevancy in the record, but rather that he will not admit enough that is relevant (Elkouri and Elkouri, H2w Arbitration 'Works, Fourth Edition, Chapter 8), i Reason Contract and Law In Labor tt do s, 68 Harv.L.Rev. 999 (1955)].
 Ae rogards the taped voice comparison, we have been unable to confirm that the tmpartor was Engineer Scott. Although we, and our retained experts, find the two voices suspiciously sunder, we (they) cannot
 SBA No. 394 AW1tdN0.1633 lap NO, 14

 conclude with certainty that they are one and the $ame person, and we will stot speculate on such a serious matter.
 Furthermore, the addition ofthe carrier's circurnstanrW evfdenoe, which clearly points to no othor benefactor but Engineer Scott, does not -elevate the quantum of proof offered to the level required. The general rule, when considering circumstantial evidence, is that in order to sustain a termination, such evidence must be inconsistent with any otherrational conclusion, and exclude every other reasonable theory on hypothesis, except that ojguilt (FEIl & Sinicropi, F,viderce ir Arbitntion. C;tspter 2, p. 4 er seg., BNA 1980). Although we are sensitive to the possibility of collusion and conspiracy, we cannot, without more definitive proof, eliminate all other reasonable possibilities regarding who, and why, such a fraudulent telephone call was made.
 Burden of proof is a judicial concept that is often applied in an arbitral setting; its basic urility is to identify the parry that has the affumarive obligation to persuasively prove a pivotal fact or issue -tGoerske, "$undej~9f$roof in Grirva n p Arbitratirnt^, 42 Maq.LRev. 135, 156
 SSA No. 894.
Awwd No. 1633
 hr NO. 1I

 (1939)). Notwithstanding the fact that this appeal is essentially civil in
 nature, the charging party (oarrier) has the affirmative responsibility to allege and prove, with a reasonable degree of ccrtainty, the wrongful act and the speci$c rule violated. Unlike the stringent standards imposed by the courts, there it no statutory requirement or controlling case law which mandates that the carrier's charges be measured by the same degree of specificity as n criminal action [Aaron, 'TnTnPro ed·=t Prob ernc in Azbi~ 10 Vand.L.ReV. 733, 741(1957)]. However, the credible svidencc must be clear ma compelling - in our judgment the carrier's evidence falls fatally shore of satisfying such proof requirement. AW.A$12: Based on the credible evidence of record, giving due regard to the respective proof responsibilities, we are obligated to dismiss the carrier's charges involved in this appeal, and rmrse the diiciplinary
 :9A No. 994 Awed N0.1633 TWNo )2

 sandion; claim sustained. Cexzier is directed to implement this award within 30 days of the effective date hereof.
                N B. HAYS, Nets W


S. R. FRWMAN, CarriCrcmi,er . W. RODZ , Or tion Member

                February 6, 1998

                DATE

                      aDfi 07Y

AWARD NO. 1633

CARRIER MEMBER'S DISSENTING OPINION


The majority in the above-entitled award incorrectly determined issues contained in this case; firstly the quantum of evidence requisite to establish guilt. The authorities have developed a well-established standard in the railroad industry referred to as SUBSTANTIAL EVIDENCE. This standard requires proof exceeding a "mere scintilla" It is not intended or recognized as amounting to a "preponderance" of the evidence and certainly the standard in criminal cases of "proof beyond a reasonable doubt" does not apply. In this case, there was direct testimony and circumstantial fact presented that the Appellant imitated Superintendent Garofolo, for the intended purpose of returning to service illicitly. The majority chose to ignore these facts and thereby violated a second well-established precept in railroad disciplinary hearings that credibility issues are determined by the reviewing party. The majority overruled the reviewing officer's determination that the credibility of Superintendent Garofolo far surpassed that of the Appellant. The misguided result in this case violates the long-standing principle concerning the exclusive right of the carrier's reviewing officer to decide credibility issues.

 Finally, it appears the neutral party treated the instant case in combination with Award No. 1632 which also involved the Appellant. For that case, the Appellant was found responsible for threatening a yardmaster. The discipline of dismissal was reduced to a lengthy suspension. It appears these two separate events were evaluated as part of one occurrence, resulting in the discipline assessed in Award No. 1632. Any employee engaged in threatening behavior imperils their valued employment relationship with Conrail- Such behavior should be judged separately from other charges arising from distinct events, even if a tenuous relationship exists between them. It appears these events were compromised in order to permit the Appellant to return to service, notwithstanding the seriousness of his actions. Based on all of the foregoing, I DISSENT.

                        s"I

                          01


S. R Friedman - Carrier Member Director - Labor Relations