Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 8665
 SECOND DIVISION Docket No. 8602
 2-N&W-CM-'81
 The Second Division consisted of the regular members and in
 addition Referee John B. LaRocco when award was rendered.
 ( Brotherhood Railway Carmen of the United States
 Parties to Dispute: ( and Canada


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.

Claimant, a Carman with five years of service, was discharged on May 3, 1978 for his alleged unauthorized acquisition and sale of a steam jenny belonging to the carrier. A plenary hearing was held on April 12, 1978 after numerous postponements. The claimant had previously been suspended from service on November 29, 1977 pending the outcome of the hearing.

 The organization raised several procedural objections during the investigation which, according to the organization, undermined the impartiality and integrity of the hearing process. Also, the organization urges us to reverse the assessed discipline because the record lacks any evidence to support the charge. The carrier argues that the hearing was fair because the claimant had ample opportunity to prepare a defense and to call witnesses of his choice.

 We turn first to the organization's objections concerning the purported bias of the hearing officer and the admission of hearsay evidence. First, the hearing officer did not prejudge the claimant. He did ask penetrating questions which were designed to develop the facts. such questioning ig not only permissible. but also the hearing officer has an affirmative duty to pose questions which will induce witnesses (including the claimant to testify about all facts within their knowledge which are related to the charges. Second the organization contends
 4 "; ?,"":;
 Award No. 8665
 ~F.ge ~'_ Docket No. 8602
 2-N&W-CM-'81

 the record is replete with hearsay evidence. However, a Rule 37 hearing is not 1400,
 conducted according to the rules of evidence applied in a court of law. Any oral
 or documentary evidence (even though it may be technically characterized as
 hearsay which is material to the charge may be admitted into evidence. Third
 Division Award 16308 (Ives). Thus, the patrolman's report detailing his extensive
 investigation into the disappearance of company property is proper evidence.
 Indeed, the report constitutes reliable, probative evidence since it is an
 ordinary record kept in the normal course of business. The claimant and his
 representatives had an opportunity to cross examine the patrolman on both the
 authenticity and accuracy of his report. The statement of Mr. Jackson, the alleged
 purchaser of the steam jenny presents a different problem. Here, the author of
 the statement was not a witness of the hearing and there was no showing that he
 was unable to testify at the hearing. Thus, we must balance competing policies,
 that is, the need for the hearing to develop all the facts with the claimant's
 right to defend himself. It is impossible for the organization to cross examine
 a piece of paper. But .as we stated above, a Rule 37 hearing does not follow
 the rigid rules of a courtroom. Because the claimant could not cross examine the
 author and because the carrier failed to show that the author was unavailable to
 testify, we cannot rely exclusively on this statement to prove the charges.
 However, the statement was material to the charges since the signator stated he
 purchased the steam jenny from the claimant. The evidence is certainly not
 prejudicial since the claimant could and did deny the fact set forth in the
 statement. Therefore, Mr. Jackson's statement is admissible evidence. The
 claimant was given a fair and impartial hearing.
the charge that the claimant converted company property to his own use. The -
 carrier discovered a steam jenny was missing in November, 1977. The Assistant
 Engineer of Roadway Equipment fortuitously observed the machine at a local service
 station. Carrier police and public authorities traced the machine to Mr. Jackson
 who produced a bill of sale signed by the claimant. In addition, Mr. Jackson
 had a cancelled check in the amount of 200.00 made payable to the claimant. Even
 if we completely disregarded Mr. Jackson's hearsay statement, the above independent
 evidence supports a finding that claimant committed theft. Also, the claimant
 conceded that he took the steam jenny but characterized it as "borrowing". His
 testimony is patently speculative when viewed against the facts. If he borrowed
 it in September, 1977, why had he still failed to return it by November, 1977?
 If he borrowed it, why was the equipment no longer in his possession or under
 his control when the carrier found it at a local service station? These facts
 clearly demonstrate the inherent inconsistencies in claimant's defense that he
 merely borrowed the steam jenny.

 Lastly, theft is a serf@us offense which justifies a heavy penalty. The carrier's decision to dismiss the claimant is not arbitrary or excessive. Employes are protectors of company property. Instead, the claimant converted carrier property for his personal benefit.


                            By Order of Second DIN; !)n

Attest: Executive Secretary .40

          tional Railroad Ad 'u went Board


By ___
 `'' esemarie Brasch - Administrative Assistant
 Dated at Chicago, Illinois, this 4th day of March, 1981,