PRETATION OF ITS RULES, EMPLOYES MUST OBEY INSTRUCTIONS OF THEIR SUPERVISOR. FAILURE TO COMPLY WITH INSTRUCTIONS OR THE DISREGARD FOR AUTHORITY WILL BE CONSIDERED AS AN ACTION OF INSUBORDINATION.'

"In accordance with the agreement covering hours of service and working conditions between the Railway Express Agency and employes thereof represented by the Brotherhood of Railway and Steamship Clerks, Freight Handlers, Express and Station Employes, you may be represented by an employe of your choice or a dulyaccredited representative."

Subsequent to the investigation, that is on September 4, 1951 claimant was advised as follows:

"Referring to the Minutes of Investigation held in your case on August 29th, 1951, in connection with your refusal to comply with instructions from your superior officer-

"The facts developed during the investigation reflects that charges are sustained, and that your failure to comply with instructions of your Superior Officer was entirely uncalled for and constituted Insubordination'. However, in view of your past record, and the thought that you will avoid such circumstances in the future, you may return to work on your regular assignment, Tuesday, Sept. 4th, 1951, with suspension of four days with loss of pay, i.e., August 28th through August 31st, 1951."

The Organization asserts that claimant was under no contractual obligation to relieve the telephone operator (there being no emergency) since she held assignment as a stenographer that she hail shown her willingness to be of full service to her employer by acting in relief of the telephone operator on days prior to the time in question; that she could not be properly charged with insubordination (failure to comply with instructions of her supervisor) inasmuch as she had previously asked to be relieved of the telephone duties in question; and finally that she had not been given a fair and impartial hearing within the meaning of Rule 29 which reads as follows:

"An employe who has been in the service more than ninety (90) days or whose application has been formally approved shall not be disciplined or dismissed without investigation, at which investigation he may be represented by an employe of his choice or duly accredited representative. He may, however, be held out of service pending such investigation. He shall have at least twenty-four (24) hours advance notice of such investigation and shall be immediately apprised in writing of the precise charge against him. The investigation shall be held within seven (7) days of the date when charged with the offense or held out of service. A written decision will be rendered within seven (7) days after completion of investigation.

'Note: The management agrees that in its instructions respecting this rule, it will advise that the suspension feature of the rule is permissive and not mandatory, and is not expected to be invoked where trivial offenses or minor infractions of rules are involved."'

in that claimant was improperly suspended prior to the investigation. Objection is likewise directed by the Organization to the manner in which this investigation was held in that the Respondent's officer acted as both prosecutor and judge.

This Board stated in Award 4840:

"* * * It must be borne in mind that the conduct of a hearing in a disciplinary proceeding does not require an adherence to all

the attributes of a trial of a criminal proceeding in the courts. Prior to the advent of collective agreements, management could hire and fire, or otherwise discipline employes, without reason and without cause. This prerogative has been limited by contract and it is the enforcement of these limiting contractual provisions with which we are here concerned. In other words, the Carrier must show that it acted upon evidence that warranted the application of discipline or, stated inversely, it must show that it did not act unreasonably or arbitrarily. The Carrier's trial officer represents it in making this determination. It is not a case of the trial officer being both prosecutor and judge, it is a matter of contract compliance in which the trial officer interprets the Agreement in the light of the evidence in the first instance. * * *"

While we subscribe to the principle therein laid down and here reiterate our adherence thereto; the facts of record here have at least one distinguishing circumstance. G. P. Poupart, the Chief Clerk, was claimant's immediate supervisor. The instructions which the claimant is charged with failing and refusing to follow were his. He sent claimant home in midafternoon on August 27, 1951. The notice of hearing was prepared by him. He presented the Respondent's case and acted as hearing officer as well as making the discipline decision here complained of. Mr. Poupart likewise gave testimony. His testimony was not corroborated. He was the only witness.

It is unquestioned that claimant was entitled to a full, fair and impartial hearing.

The hearing officer here was passing upon his own credibility as a witness and the weight to be given his own testimony.

This is highly improper. It cannot be said that under the circumstances the claimant was given a full, fair and impartial hearing to which she was entitled to receive and the Respondent obligated to provide.

FINDINGS: The Third Division of the Adjustment Board, after giving the parties to this dispute due notice of hearing thereon, and upon the whole record and all the evidence, finds and holds:

That the Carrier and the Employes involved in this dispute are respectively Carrier and Employe within the meaning of the Railway Labor Act, as approved June 21, 1934;

That this Division of the Adjustment Board has jurisdiction over the dispute involved herein; and

That the claimant was not given a full, fair and impartial hearing, as required and that she should be compensated for all salary loss sustained on August 27, 28, 29, 30 and 31, 1951 and that her personnel records be cleared of this charge and penalty.

AWARD