The hearing was held on March 13, as scheduled. At the conclusion of the hearing, Mr. DeVol told Wagers that he was out of service.

On March 16, 1959, Superintendent Alsop notified Wagers that he was being dismissed from service because of his conduct "unbecoming an employe" in that he had behaved in an "insolent, arrogant and belligerent" manner in the office of the Assistant Superintendent at St. James, Minnesota, on the evening of Monday, March 9, 1959.

In negotiations between the parties during the next few weeks, attempts were made to settle the dispute which arose from this dismissal notice. On April 27, 1959, Director of Personnel, T. M. VanPatten indicated a willingness to reinstate Wagers "on a leniency basis" and without compensation for lost time. This offer was rejected on the ground that Wagers had not been afforded a "fair and impartial hearing" in that certain evidence which he sought to introduce was not permitted to be entered in the record. This evidence was intended to show that Agent Lenzen actually performed work which Wagers might have regarded as improper.

In short, the Organization contends that Wagers was denied due process in that he was not given a fair and impartial hearing.

A copy of the transcript of the investigation hearing is before us. At this investigation Claimant Wagers was charged with having violated Rule 704 on the evening of March 9, 1959 in the office of the Assistant Superintendent at St. James, Minnesota. This rule is as follows:

"Civil, gentlemanly deportment is required of all employes in their dealings with the public, their subordinates and each other. Courtesy and attention to patrons is demanded. All employes are prohibited from entering into altercations with any persons regardless of provocation. They will make a note of the facts, if necessary, and report to their immediate superior. Employes must re-

frain from talking or the use of profane or vulgar language at stations or on or about trains."

There is no evidence of record that Claimant used any profane or vulgar language when he was called on the carpet about the time claims which he had filed, and which had already been denied. In the course of the discussion with Agent Lenzen and Mr. DeVol, he did state as his opinion that a certain trip of Lenzen to a location which was being picketed was "scabbing". But at the investigation hearing all attempts on the part of Claimant Wagers' representative to put into the record evidence which might throw some light on this subject and thus explain the provocation of such a statement as Wagers made, was suppressed by the officer who was conducting the investigation.

A careful study of the record before us leads us to conclude that Wagers was not afforded a fair and impartial hearing. There may have been cause for some reprimand in the first instance; but there was no cause for dismissal. The Carrier has already acknowledged this in offering reinstatement on a conditional basis.

The claim must be sustained. See Award 7107.

FINDINGS: The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds and holds:

That the parties waived oral hearing;

That the Carrier and the Employe 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 Agreement was violated.

AWARD