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INVESTIGATIONS

   Know your rights to assure a fair and impartial investigation. Be informed for today. If a Carrier remains adamant about the charges, the only power that can reinstate a discharged railroad employee to his/her job may well be the decision of one "neutral person" appointed by the National Mediation Board, whose decision must be based solely upon the record made at the investigation hearing.

   In the railroad industry (a) the Carrier is the moving party in all disciplinary matters and (b) the investigation hearings are under the control of the Carrier.

   When conducting an investigation, the contract rule covering investigations is the only vehicle between the railroad employee and the Carrier before a penalty can be imposed and upheld. An investigation is by no means a one-way street whereby the Carrier may channel a preconceived judgment of guilt.

   The National Railroad Adjustment Board (NRAB) and other such tribunals have a deeply routed principle of justice, and their decisions (awards) give recognition to the underlying proposition that embodied in any investigation and discipline rule is a most valued right, security of employment. This right may not be denied except in a manner provided in the collective bargaining agreement under which the employee works.

   Therefore, predicated on the above, the Carrier, as a party to the collective bargaining agreement, has a contractual obligation and responsibility in assuring the fairness and impartiality of the investigation pertaining to the administration of discipline.

   It is axiomatic in the employer/employee relationship in the railroad industry that the Carrier is the moving party in all disciplinary matters. Likewise, it is axiomatic with the scheme of disciplinary procedures, under schedule agreements requiring the invocation of the investigation rule incident to the administration of Carrier imposed discipline, that these railroad investigations are under the control of the Carrier. The purpose of the investigation is mainly a fact finding device aimed at conducting an impartial inquiry into all the facts connected with the subject matter under investigation so as to develop the truth, regardless of the result to either party. Or to put it another way, the holding of an investigation is not for the sole purpose of proving the correctness of the charges, but for the purpose of developing all facts material to the charge, both favorable and unfavorable to the employee. It is important to note here that this does not mean to imply that an employee under charge need not plan his defense or conduct it in a diligent manner to the best of his ability, or that he/she may rely solely on the Carrier to develop evidence which will exonerate him/her of the charge. The real point here is that the Carrier, in recognition of the fact that these railroad investigations are under its control, must deal with the presentation and development of all facts material to the charge in a fair and just manner. If the Carrier has knowledge of such material facts it has the duty and obligation to produce same, and that necessary latitude be allowed the employees in presenting testimony and evidence material to the matter under investigation without denial or undue hindrance on the part of the hearing officer.

   It is noteworthy to comment here that, in the accepted scheme of disciplinary proceedings in connection with the proper application of the (investigation) rule, the investigation hearing is not an adversary proceeding per se. In this respect, it must be borne in mind that the particular forum employed in conducting the hearing does not require strict adherence to courtroom procedures and that the technical rules of evidence do not necessarily apply. However, this is not to be construed as authority for the Carrier to disregard the principle of fair play and justice (as they relate to the Carrier's contractual obligation to conduct a fair and impartial investigation) in favor of some type of kangaroo court. If anything, the non-observance of strict courtroom procedures requires the Carrier, in light of its controlling position in the investigation proceedings, to exercise special care in affording the accused all rights under the contract and assure the fairness and impartiality of the investigation in keeping vim the principal reason for holding same.

   Once the employee/member receives notice of a formal investigation, he/she should immediately contact their representatives. Contractual time limits are now trolling and it is most important that both parties adhere to these limits. Cases have been won and lost when one party or the other fails to adhere to the time limit provisions of the collective bargaining agreement.

   What should the Local Chairperson do once he/she receives notice from a member that he/she has been charged?

Prepare! Prepare? Prepare!

   There is no substitute for preparation. You and your local must be willing to spend the time and money required for you to be properly prepared to represent our membership. Attempting to do all of the necessary preparation by meeting at a restaurant a few hours before the scheduled start of the formal investigation, simply does not do justice to the member under charge.

   At a minimum, substantial time must be spent interviewing and gathering statements from those under charge and those who will testify as witnesses. At the same time, those same parties must be familiar with investigation procedures and protocol, as well as the questions that may be posed to them.

   Concurrently, the representative must develop a written outline of the facts and issues that must be covered. At the same time, the applicable collective bargaining agreement provisions must be reviewed. Moreover, resources such as past precedent on issues of both procedure and merit must be reexamined and studied.

   Additionally, in many cases it will be necessary to visit the scene where the occurrence took place, to take photographs and prepare sketches, maps, charts, and the like for introduction as exhibits into the investigation transcript. In this respect, keep in mind that a picture is worth a thousand words.

An Investigation is Not a Court of Law

   Many of us have a tendency to confuse the internal "railroad administrative" hearing (i.e., the formal investigation) with a criminal trial in a court of law. It has been suggested that this gross misconception comes from watching too much television and relying on the unrealistic perceptions we have developed from viewing programs such as Perry Mason. This is a terrible injustice to our members!

   The bottom line is that there are few valid similarities between a proceeding conducted in a court of law and an administrative investigatory proceeding which is conducted pursuant to the Railway Labor Act and the collective bargaining agreement.

   Keep in mind that the only rights we have in an investigation are those contained within, or triggered by, the contract. To put it another way, contractual rights are not rights enjoyed by everyone who walks on American soil. Why? Federal and state constitutions govern actions between a government (e.g., state or federal) and its citizens. To a significant extent, constitutions do not govern actions between private parties, such as actions between a corporation and an employee.

   From time to time, Local Chairpersons and their members may assert that the First, Fourth, Fifth, or Fourteenth Amendments to the United States Constitution apply to investigation procedures. The simple answer to that assertion is "they do not apply."

   The clerk at the grocery store, or the employee who pumps gas at the service station, is not entitled to an investigation before his employer disciplines him/her unless he/she has a contract that mandates same. We have such a contract, but the process mandated therein has little or nothing to do with our constitutional and legal rights.

Primary Purpose - Build a Record Contained in the Transcript

   Thus, the primary purpose of an investigation is to build a record for subsequent review by a neutral arbitrator. Remember, if your point is not contained within the official hearing record (the investigation transcript) the neutral arbitrator will not consider it when the case is arbitrated. Simply stated, the primary purpose of the investigation is to build a record (i.e., the testimony contained within the hearing transcript) by which we may overturn the discipline that has been assessed.

Fair and Impartial

   As a foundation for most written discipline rules, the accused is entitled to a "fair and impartial" hearing prior to the assessment of any discipline. This is a "contractual" right.

   As a party to the contractual provision, the railroad has a collateral obligation to guarantee that the accused receives certain "fundamental" rights which are triggered by virtue of the "fair and impartial" contractual provision. The "fundamental" rights may, or may not, be specifically articulated within the body of the contract.

   Fundamental rights include, but are not limited to, the following principles:

      1. Written notice containing specific charges.

      2. Right to representation.

      3. Right to confront and question accuser and/or witness.

      4. Right to defend one's self, including producing evidence on one's own behalf and calling witnesses with pertinent testimony.

      5. Right to a hearing that is free of bias and prejudgment.

Burden of Proof 

   Another critical difference between a criminal trial and a formal investigation is the standard of evidence necessary for the moving party to meet its burden of proof. As the moving -' ^ party, the railroad has the burden of proof. That is, management must produce probative ^-"^ evidence (firsthand, credible facts) in support of the charges.

   What does the term probative mean? A probative fact is one that proves the charge being sought. As an example, a credible fellow crew member who testifies that he/she saw accused consume a pint of whiskey within the tour of duty establishes a "probative" fact in connection with a Rule G charge.

   What is the "standard of proof necessary to convict the defendant in a criminal trial?

   "Beyond a reasonable doubt". This means that the judge is entirely convinced, without any reasonable doubt, that no other outcome is possible. This is the highest standard of proof. However, the railroad does not have to meet this standard in an investigation. Moreover, that standard only has to be met m a criminal trial in a court of law.

   What is the next highest standard? "Clear and convincing evidence." This means the judge believes it is "highly probable" that the defendant committed the offense, and also believes that another outcome is only slightly possible. The railroad does not have to meet this burden in an investigation. It is met in certain civil cases.

   The lowest standard of proof is "Substantial evidence." A layman's definition of this standard is that a "reasonable person" could conclude that the rule was violated. This is the standard the railroad must meet in a formal investigation.

INTRODUCTION

   A successful representative should:

   - Know the defendant's rights as they have been ruled by the National Railroad Adjustment Board.

   - Understand the principles basic to the investigation rule, so that you can evaluate new situations as they arise.

Later in this introduction we will suggest major influences upon the railroad hearing.

   - Combine this knowledge, together with a practical ability to handle people and situations with mastery, so that you can accomplish your purpose.

   This is at once the most important and the most difficult to explain. This volume is dedicated to the task.

   Some chairmen object to minor defects of the hearing and allow major defects to pass unnoticed. During the investigation other chairmen have successfully employed certain practices that have no basis in rights. While we do not wish to discourage success in any form, it is true that some of this success can be charged to the fact that the carrier actually understands the standards of a fair hearing far less than does the representative, and it is sufficient that we label proper and improper practices for what they are.

   As chairmen of two Operating Brotherhoods, we have in this book used the figures and figures of speech familiar to us, but no section of this book is limited to a particular schedule or craft, and the conclusions are applicable to any railroad employee covered by a hearing provision in his schedule.

JUDICIAL INFLUENCE

   ...Nor shall any person...be deprived of life, liberty or property, without due process of law.

   This excerpt from the Fifth Amendment to the Constitution (later repeated in the Fourteenth Amendment as binding upon the states) is a remarkable personal guarantee that has become part of our heritage known as the Bill of Rights.

   The Constitution has not further defined "due process," and of necessity the courts have had to set the standards as well as apply them. The courts are constantly defining what is arbitrary and what is reasonable, as the phrase "due process" is subjected to myriad situations.

   In 1921 the Railroad Labor Board, in Decision 119, suggested a set of principles to guide the carriers and employees in their deliberations, and principle No. 8 concerned the hearing procedure:

   No employee should be disciplined without a fair hearing by a designated officer of the carrier. Suspension in proper cases pending a hearing, which should be prompt, shall not be deemed a violation of this principle. At a reasonable time prior to the hearing he is entitled to be apprised of the precise charge against him. He shall have reasonable opportunity to secure the presence of necessary witnesses and shall have the right to be there represented by a counsel of his choosing. If the judgment shall be in is favor, he shall be compensated by the wage loss, if any, suffered by him.

   When the National Railroad Adjustment Board so excellently and concisely states the principles of a fair hearing as in First Division Award 5197 with Judge Carter, this should be regarded, not as an improvisation, but as accepted tenets of justice: The rule providing that an employee will not be suspended or dismissed without a fair and impartial trial contemplates that the accused will be apprised of the charges preferred against him, that he will have notice of the hearing with a reasonable time to prepare his defense, that he shall have the right to produce evidence in his own behalf and the further right to cross-examine witnesses testifying against him...The requirements of a fair and impartial trial I as herein defined are inherently contained in the rule, whether specifically mentioned or not, by the very use of the words "fair and impartial trial" and they are not to be lightly disregarded by the carrier."

   Thus we see a remarkable similarity between a fair trial in the Courts and a fair hearing on the railroad, with certain changes being necessary because the defendant, in the "inner hearing", is an employee.

JUDICIAL DIFFERENCE

   The legislative, executive, and judicial branches of our government are formed under the philosophy of Separation of Powers, but modern life has necessitated a combining of some powers, and so we have seen develop slowly and with judicial approval -- legislative authorization of administrative agencies, within the executive department, that exercises powers known as "quasi-judicial" rather than judicial. Early agencies were Immigration and Interstate Commerce Commission, but emergency legislation and the war years have increased these agencies until currently the courts are deciding as many Administrative cases as Judicial cases.

   While it is true that a railroad hearing is not bound by the rules of any administrative agency hearing, the standards closely parallel those applied to these agencies, and in fact the National Railroad Adjustment Board, to which our investigations may be appealed, is itself an administrative agency.

   The administrative hearing functions differently from court procedure in various respects. This lucidly explained in President Roosevelt's veto message of 1940, when court procedure was advocated for the administrative agencies, under the Walter-Logan bill:

   Court procedure is adapted to the intensive investigation of individual controversies. But it is impossible to subject the daily route of fact finding in many of our agencies to court procedure. Litigation has become costly beyond the ability of the average person to bear. Its technical rules of procedure are often traps for the unwary and technical rules of procedure often prevent common sense determination on information which would be regarded as adequate for any business decision. The increasing cost of competent legal advice and the necessity of relying upon lawyers to conduct court proceedings have all laymen and most lawyers to recognize the inappropriateness of entrusting routine processes of government to the outcome of never ending lawsuit.

   The administrative tribunal or agency has been evolved in order to handle controversies arising under particular statutes. It is characteristic of these tribunals that simple and non-technical hearings take the place of court trials and informal procedures supersede rigid and formal pleadings and processes. A common sense resort to usual and practical sources of information takes the place of archaic and technical application of rules of evidence, and an informed and expert tribunal renders its decision with an eye that looks forward to results rather than backward to precedent and to the leading case.

   The presenting and considering of evidence in a hearing procedure are drastically revised from recognized court procedure. Justice Brandeis has pronounced this dicta:

   Moreover, a hearing granted does not cease to be fair, merely because rules of evidence and of procedure applicable in judicial proceedings have not been strictly followed by the executive; or because some evidence has been improperly rejected or received. To render a hearing unfair the defect, or practice complained of, must have been such as might have led to a denial of justice, or there must have been absent one of the elements deemed essential to due process. U.S. ex rel. Bilokumsky v. Tod

   The reasonable doubt theory of the criminal trial is not present in the railroad hearing. A typical court decision that has shown influence on the consideration of hearing evidence is a case involving a village firing a janitor for drunkenness:

   In case of dereliction of an employee in the performance of duty, the determination upon the facts is for the Town Board, and such determination will not be set aside by the courts unless it is unsupported by proof sufficient to satisfy a reasonable man, of all the facts necessary to be proved in order to authorize the determination, or unless there is such a preponderance of proof against the existence of any of the facts necessary to be proved as would require the setting aside of the verdict of a jury. 284 N. Y 377, 31 N E 2nd 495.

   The hearing officer, in his dual role as prosecutor and judge, has invited the main criticism directed at administrative agencies in their quasi-judicial functioning, as it has been felt this left little opportunity for impartiality.

   The Fifth Circuit Court has said:

   The rigidity of the requirement that the trier be impartial and unconcerned in the result applies more strictly to an administrative adjudication where many of the safeguards which have been thrown around court proceedings...have been relaxed.

   It is our belief that the hearing officer is the weakest link in the railroad hearing, and that continual probing by the representative as to the hearing officer's bias, involvement, prejudice, etc., will force a higher standard of conduct upon this most critical person in the hearing.

   Thus, while the burden of proof is upon the carrier, the carrier has a wide latitude, as compared to the courts, in the admitting and considering of evidence, and the degree of evidence necessary to convict. The hearing officer, intrinsically a partisan of the Company (for it is said a person interested in a trial cannot judge it), must engage your constant vigilance.