Foam 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 7916
 SECOND DIVISION Docket No. 7536
 2-c&Ma-CM- '79



Parties to Dispute: ( (Carrnen)


Dispute: Claim of E:nployes:





Fa.nditEs:

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

 The carrier ax carriers and the employe ox employer involved in this dispute are respectively carrier and employe within the meaning of the Railway Labor Act as approved June 21, 193-.

 This Division of the Adjustment Board has jurisdiction over the dispute involved herein.

This dispute involves a sixty day disciplinary suspension based on Claimant's failure to protect his assigre:m:nt on. September 18, 1976, The facts revealed in the transcript of the investigation indicate that CJ_a:i.riHnt had traveled to a torn (in fact to a club house outside of the town) about 70 miles f:.wcxm his duty assignment. When he. appeared to be stranded at that point he telephoned h:is foreman at 10:30 2,,-M: explaining the circumstances and stating that he would not be able to protect his assigiment the next morning at 7:00 A. I:i. The foreman d:id not gave Ylm permission to be off but told him the phone call would be noted, tie 20 of the .Agreement provides:
 Form l Award No. 7916
 Page 2 Docket No. 7536
 2-C&ZVtrT-CM-' 79
 "Employes wishing to be absent from work must obtain
 leave of absence from the foreman whenever practicable
 to do so, and foreman will endeavor to grant leave of
 absence when requested.
 An employe detained from work on account of sickness o r
 from any other cause shall notify his foreman."

 Petitioner~objected to the conduct of the hearing on two grounds: that Claimant or his representative were not permitted to cross-examine Carrier's sole witness, the foreman; and further that Carrier improperly questioned Claimant with respect to his past record in a manner indicating pre-judgement_ Carrier denied that there were any improprieties arguing that Carrier has the right to introduce evidence concerning Claimant's past record into the investigation to assist in the determination of the quantum of penalty to impose. Additionally, Carrier points out that Claimant and his representative were given every opportunity to ask questions in the course of the investigation including questioning Carrier's witness at the conclusion of Claimant's testimony.

 The Hearing Officer's conduct in this matter was clearly questionable. He should have specifically offered the Claimant the right to cross-examine the Foreman at the conclusion of that individual's testimony, not later in the proceedings. That flaw alone would be determinative had the issue in this case been one of fact credibility. Since the facts are not substantially in question, we will merely note that the investigating officer was wrong in his actions in this regard, which might in other circumstances be fatal. Concerning the questioning about Claimant's past record, we have additional grave doubts. There is nothing in the record of the investigation which outlines the past record in question; in fact, the entire record of the dispute is devoid of specific facts covering Claimant's alleged prior infractions. Clearly, Claimant's prior discipline record should have been introduced as a matter of fact, rather than questioning Claimant in the manner used in this case. Again, this conduct is close to an indication of lack of fairness and due process.

 On the merits there is no question but that Claimant for reasons best known to himself was unable to travel the 70 miles to his assignment in a nine hour period following his call to the Foreman. He was not given permission to b e off, as we see the record. The issue on this count is whether the sixty day suspension iras appropriate in view of the lack of information on Claimant's past record. In our view, under all the circumstances, the penalty was arbitrary and excessive. Taking into consideration Carrier's right to have employs report for work on a consistent and reliable basis, and Claimant's admission of a prior disciplinary action, we find that the penalty herein should be reduced to a thirty day suspension and Claimant should be made whole for the balance of the original suspension_
 Form 1
 Page 3

 Attest: Executive Secretary
 National Railroad Adjustment Board

Award No - 7916

Docket No. 7536

2-C&NW-CM-'79


A W A R D

 Claim sustained in part as indicated above.

NATIONAL RAILROAD ADJITS`iMENT BOARD

By Order of Second Division


BY

 %R sema,rie B,rasch - Administrative Assistant

 Dated aChicago, Illinois, this 16th day of May, 197.

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