Form 1 NATIONAL RAILRQID ADJUSTMENT BOARD Award No. 8468
 SECOND DIVISION Docket No. 8468
 2-C&NW-MA-'80
 The Second Division consisted of the regular members and in
 addition Referee Herbert L. Marx, Jr. when award was rendered.

Parties to Dispute:


Dispute: Claim of Employes:




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

 The carrier or carriers and the employe 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.







The principle thrust of the Organization's position is that the Claimant was denied a fair and impartial investigative hearing. Rule 35 states in part:
Form 1 Award No.8468
 Page 2 Docket No. 8468
 2-C&NW-MA-' 8O

 Implicit within this rule is that the "investigation" should be conducted without presumption of guilt by the hearing officer and in a manner to provide for a fair and full review of the facts and testimony adduced. Only in such manner can the "investigation" serve the purpose for which it is designed.

 Examination of the hearing record by the Board offers convincing support for the Organization's view. The agreed upon facts are that the Claimant and another employe were found sitting in the cab of a locomotive, where they had no work assignment. Two witnesses for the Carrier testified that the Claimant had his eyes closed when observed. Beyond this, the record clearly shows that the hearing officer led the Carrier witnesses to say considerably more than in their initial testimony.

 For example, Witness Jozwiak originally testified: "... I observed Mr. Fuery had his head down, eyes closed in the fireman's seat. And, ah, after I observed him for approximately ten seconds, I opened up the door and, ah, woke Mr. Fuery up."





On pages 25-26 of the transcript, an Organization representative attempted tote ask Witness Jozwiak concerning a different version of the incident given by Witness Deyo. The hearing officer cut off this line of questioning. The Board finds it would have been proper for the Organization to question concerning this testimony by Witness Deyo in order to get Witness Jozwiak's reaction.

 There was also a Carrier representative present, S. Mondek, General Foreman, who was not a witness but listed as "Co-Interrogator". In questioning Jozwiak at Transcript pages 26-27, Mondek attempted to lead the witness into an account of his opening the locomotive door and speaking to the Claimant. When this was objected to by the Organization Mondel stated: "I withdraw the statement at this point". (emphasis added)

 The Board is left with the distinct impression that the hearing officer and his "co-interrogator" were not acting as impartial fact-finders but as advocates seeking to prove the charge.

 Many previous awards have emphasized the essential requirements for a fair hearing. In this instance the improprieties by the hearing officer were not simply peripheral but went to the core of the Carrier's charge -- that is, whether or not the Claimant was asleep. As such, the Organization's argument as to a defective hearing will be sustained. As stated in Award No. 6795 (Eischen):

and judgemental rules, the net effect of which is to deprive -
 claimant of a fair hearing. Carrier bears the serious
 Form 1 Page 3

 Award No. 8468
 Docket No. 84.68
 2-C&NW-MA.-' 80

 "responsib ility of assuring an accused employe a fair and impartial hearing. This responsibility is ignored only at the peril that serious and prejudicial procedural defects may prove fatal to Carrier's substantive case."

 In addition, comment is required on the testimony which was adduced, even under the circumstances described above. General Regulations and Safety Rule 23 reads as follows:

 "Employes must not sleep while on duty. Lying down or in a reclining position with eyes closed or covered will be considered as sleeping."

 The Claimant was found sitting in an erect position. Two witnesses testified that they observed his eyes closed. But testimony showed he was immediately responsive when spoken to and/or when the door was opened. The record fails to support the Carrier's finding of guilt under the specific terms of Rule 23, anal. the charge of "sleeping" is the only one made against the Claimant.

 Thus, the resulting discipline based on the charge was based on improper conduct of a hearing and was arbitrary as to the evidence set forth at such hearing.

 A W A R D

 Claim sustained. The Claimant shall be promptly offered reinstatement to service and paid for all regular time lost, less deduction of outside earnings.

NATIONAL RAILROAD ADJUSTMENT BOARD

By Order of Second Division


Attest: Executive Secretary
 National Railroad Adjustment Board

 By

Dat d at Chicago, Illinois, this 8th day of October, 1980.