NARRator

OFFICIAL NEWSLETTER
OF THE NATIONAL ASSOCIATION OF RAILROAD REFEREES
APRIL 2003

A unique aspect of arbitration under Section 3 of the RLA is its appellate character. From my experience, arbitrators working in other forums where they conduct hearings and engage in discovery find this to be a curious characteristic about arbitration under the RLA. Curious or not, this is the way it is done. Arbitrators who confuse the two processes do so at risk when hearing Section 3 cases. I know of more than one arbitrator over the some 20+ years I have been ruling on Section 3 cases whose attempts to solicit information at hearings in RLA cases led to brief, albeit perhaps brilliant, careers as a railroad arbitrator.

When parties of interest argue Section 3 cases, therefore, they argue what is already in the record before the arbitrator. The evidence is all there. If one side tries to add to the record at a hearing an astute opponent will immediately lodge an objection and request, rightfully so, a bench ruling by the arbitrator. But to say that the record is all there is one thing. To digest the evidence of record, when framing a ruling, is another.

I limit these brief comments to evidence in disciplinary hearing under Section 3. I believe that so-called "rules" cases present a different set of issues as far as evidence is concerned which can be dealt with at another time. I will further focus, for the sake of brevity, on the issue of merits, albeit many discipline cases do have due process issues associated with them which have to be dealt with by the arbitrator.

It has always been my habit when scrutinizing the records of discipline cases to closely study the hearing transcript after reviewing the charges levied against the employee who has been disciplined. Then I review the exchanges of correspondence when the case was handled on property. Only lastly do I review the briefs submitted by the parties, or the "submissions" as they are called in the Section 3 forum.

Cases are won or lost on the basis of the content of a transcript. Although there may be an exception or two which comes along occasionally, it is what goes on at the investigation which is the primary evidence, in my estimation, on which rulings on the merits of discipline cases must be made. Transcripts cannot be read. They must be studied. And it is best to do this, in my view, before being influenced by either parties' interpretation of the transcript which is what "submissions" are all about in discipline cases. Neither labor nor management has a corner on the market of selective perception in these matters. From my experience both sides have skilled advocates who can do this. I have been to enough conferences and have heard enough over the years about being hoodwinked at an investigation. I do not really believe that any more. The people involved in this business really are pretty smart. Not too many people get hoodwinked. Arbitrators see through all this posturing. Experienced arbitrators do so in a heart beat.

There are certain cases where resolving credibility issues is an arduous task. After awhile arbitrators develop what I believe to be a sixth sense about these matters. They sense when a picture just does not add up. But well reasoned decisions cannot be framed on suspicions. They must be based on evidence. In discipline cases this means that the farrows of a transcript may have to be ploughed and re-ploughed. Although I have had many cases like that over the years, I relate here two recent ones only because the details of both are still quite fresh in my mind. Both involved employees who were discharged.

In the first, an employee was fired for having allegedly violently pushed another employee while both were on duty. Obviously, violence cannot be tolerated in the work place. But the long and the short of this case was that the two met in a narrow passageway between two tables, the one who was pushed tried to step aside and in so doing lost his balance and fell, and the one who allegedly did the pushing was hurrying to answer a call from a supervisor who called on the cafeteria phone. These two guys literally collided. They ran into each other. Neither had a history of violence. Neither had a history of disliking each other. The employee who allegedly pushed his fellow employee had no motive whatsoever for engaging in any type of violence. It was just one of those deals where local supervision felt it had to take action in case what happened was an act of violence. The parties needed an arbitrator to tell them that none took place. Only a close scrutiny of the transcript permitted such conclusion. The claim was sustained.

In the second, an employee was fired for having allegedly falsified an accident report. The employee worked as a conductor for a commuter railroad. One day, while on duty, he stepped out on the platform for a final check before the train was to leave one of the stations along his route. He steps on a loose board on the platform which springs up vertically and hits him in the head. He falls, regains his composure somewhat, climbs back on the train, closes the doors, and the train proceeds to the next station. He reports the accident on the radio immediately, and goes for medical attention at the end of his shift when he is back at his home station for a bump on the head and a sore shoulder from falling on the train steps after he got hit by the board. He fills out a medical report on the incident. He reports that a passenger on the train witnessed the whole scene. She testifies at the investigation and confirms the employee's version of the facts. The company sends a B&B employee to the station and he nails down a loose board on the platform. The company produces a witness who states he was on the platform of the station in question when the alleged incident happened and he did not see the conductor hurt himself. This witness states repeatedly at the investigation that he saw the whole thing. This witness stepped forth voluntarily when he happened to have been present when the company's supervision was conducting an investigation of the scene of the alleged accident on the day after it occurred. On the basis of the testimony of this witness, and a written statement by him the conductor was fired. This was a puzzling case. I studied the transcript twice. Someone was lying or someone was simply mistaken about what happened. My suspicions increasingly centered on the outside witness. Upon the third close reading of the transcript, the mystery was resolved. The outside witness testified at one point that he saw the conductor step on the platform when the train arrived. At another point he testified that he saw the conductor step on the platform when the train was leaving. I was forced to conclude that this witness may not have been testifying in bad faith but that he most likely simply did not see "...the whole thing." He saw the conductor step out on the platform. But he did not see the conductor step out the second time to do the final check which is when the board flew up and hit him in the face. All corroborating testimony led me to conclude that this witness must have seen the conductor descend from the train when it arrived, as he correctly testified. He did not see the conductor descend when the train was leaving, as he incorrectly testified, which is when the accident occurred. There was no evidence on record to show that the outside witness was lying or had any motive to lie. He was simply mistaken about what he thought he saw. He only saw part of what happened on the day in question. He was also confused about whether the train was arriving or leaving when he saw what he saw. This claim also was sustained.

Others may have different views on how to frame decisions on merits in discipline cases under Section 3 forums. If so, I wish they would join this discussion in the NARRator. For my part, I not only have no intention of changing my ways of mining the evidence of record by first studying the transcripts of investigations, but with each passing year, I find additional confirmation that this is the most intelligent way to go about my business as a neutral when framing decisions.

April 2003

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