Dispute: Claim of Employes: .


              1. That under the current agreement, Crane Operator Thomas. J. Casey was unjustly treated and removed from service without cause on October 29, 1970.


              2. That accordingly, the Carrier be ordered to reinstate Crane Operator Thomas, J. Casey with his seniority and service rights unimpaired and compensated for all tune lest, and made whole for all other benefits provided fcr in the agreement.


      Findings:


      The Second Division of the Adjustment Board, upon the whole record and all the evidence-, finds that:


      The carrier or carriers and the emrloye or employes involved in this dispute - are respectively carrier and employe within the meaning of the Railway Labor Act as

      approved June 21, 1934. -


          This Division of the Adjustment Board has jurisdiction over the dispute

._ involved herein.

 Parties to said dispute were-given due notice of hearing thereon.

 Claimant was charged with three specific .incidents of misconduct:

      1. His improper and careless handling of American Locomotive Crane on October 5, 1970.


      2. Leaving his work assignment and being observed at location beyond his are of assigrxnent at 11:50 A.M. on October 8, 1970. '


      3. His reckless handling of Austin-?western Crane resulting in damage to fire hydrant located w;:st side of Relief Train Storage Area on

      October 8, 1970 at 12:45 P.M.


              0

Form 1 Award No. 6439
 Page 2 - Docket No.;6243

      _ 2-RDG-FO-'73 .


The investigation and hearing was held on October 15, 1970, resulting in the discharge of Claimant. 'The hearing officer was the Superintendent Reading Car Shops. .

 The only reference to the first charge appearing in the transcript was the following questions by the hearing 'officer and response by the Claimant

        "Q. On October 5th, were you approached about the way you were handling the American Crane - that you were running it entirely too fast on #7 track. You should slow up for your oari safety and for the safety of your fow workers?


      A . Yes." - . .


An examination of 'the transcript reveals apparent bias on the part of the hearing officer. One example is contained in the following question:

      "Q. Why do you titre and time again park your crane at this particular

      area and. walk toward the Pass. Shop when you work at 'the south end of

      the Car Shop where all yrnur toilet and lunch facilities are in this area?"


The Carrier presented. one witness at the investigation whose total testimony, upon being questioned by the hearing officer, is as follows:

        "Q. Mr: Putt,~on Oct. 8th you accompanied Mr. B. O. Young, Asst. Forman, and myself to the Pass. Shop in order to check on some material. We were standing on the west side of the Pass. Shop beyond the Credit Union Office when we saw Mr. Casey walking dawn along the Pass. Shop. I made a statement to you "I Taonder-where he-is going at this tune." I looked at my watch and it was only 11:50 AM and I said to you "It is-only-.11:50 AM". Is this correct?


      A. Yes."


The transcript indicates that the hearing officer acted as witness, prosecutor and judge in the course of the proceeding. We also find that the hearing officer _ pre-judged-'the Claimant prior to the hearing. Further, the record of the investigation does not support the charges with substantial evidence.

 In Second. Division Award No. 6196 i-:e said "...A Carrier's disciplinary_decision is unreasonable, arbitrary, capricious or discriminatory when ...the Carrier's managerial representative acts as chief witness as well as interrogator and judge ...." (See also Second Division Awards 4536,.6225, 6313 and 6329) The serious burden of conducting a fair and impartial investigation rests with the Carrier: in this case the Carrier failed.

                        A W A R D -


      Claim, sustained. (,

i

 Form 1 . _ Award No. 6439
 page 3 Docket No. 624;5
 2-RDG-FO-'73
 NATIONAL RAILROAD ADJUSTMENT BOARD
 By Order of Second Division

 Attest:
          ~· · ~.~-t/

          Executive Secretary


Dated at Chicago, Illinois., this 17th day of January, 1973.

                                                              I