(Brotherhood of Railway and Airline Clerks, Freight ( Handlers, Express and Station Employes PARTIES TO DISPUTE: (Union Pacific Railroad Company - Eastern District

(1) Carrier violated the Rules Agreement, effective May 1, 1955, and amended July 15, 1967, particularly the discipline rules when it imposed discipline of dismissal fro Operator, Kansas City Store, Kansas City, Kansas, Store Department Roster 37, on July 20, 1970.

 (2) Mr. .flan M, Williams should be restored to service of the Carrier with all rights unimpaired.

 (3) He should be compensated for each work day, commencing on July 20, 1970 and continuing until adjusted, in addition to any and all overtime he would have worked had he remained in the cmploy of the Carrier, subject to a check of Carrier's records, and 97. or the Prime interest rate for the Kansas City Area on any monies that have been or will be deprived him account his improper dismissal from t
(4) All Agreement rights should be restored, including the premiums for Travelers Group Insurance Policy GA-23000 and the Union Pacific Railroad Employes' Hospital Association. He should be reimbursed for any medical expenses accruing to him and his dependents while so improperly removed from Carrier's service.

 (5) His record should be cleared of any disciplinary action taken as a result of Notice of Hearing dated July 20, 1970 or resulting from the unfair, partial, biased, discriminatory, unjust hearings held on July 24 and 27, 1970.

 OPINION OF BOARD: This is a discipline case under agreement between the parties
 effective May 1, 1955, amended July 15, 1967. Claimant,
 Mr. Alan M. Williams, with seniority date of November 23, 1968, held the position
 of Auto Truck/Tractor Operator, with duties predominately consisting of supply
 ing cabooses on outbound trains at Kansas City, Kansas.

 Following hearing held on July 27, 1970, claimant was dismissed on August 6, 1970 for rendering false and misleading reports and inserting thereon derogatory remarks directed toward Local Supervision and Railroad Management in general. The defense at the hearing, inter alia, was that Carrier had disregarded the safety


The evidence in the record of the July 27, 1970 hearing is sufficient to justify Carrier's findi Carrier's handling of this case, both in the hearing and in the appeal, some procedural irregularities occurred which this Board cannot condone.

 Claimant's representative sought to cross examine Carrier's witness Hill on the subject of Carrier's unsafe practices in the supplying of cabooses. The hearing officer restricted this line of questioning to the particular cabooses involved in the c Later in the hearing the hearing officer, himself, put into evidence a Carrier bulletin which concerned safety procedures and which applied to all cabooses "on through trains in yard, or live track". Thus the hearing officer first ruled to limit the scope of cross examination and then chose not to follow his own ruling. More importantly, though, it was clear that claimant's representative sought to establish a defense, explanation, or other connection between unsafe practices and the conduct of claimant which lead to the charges; therefore, it was inappropriate for the hearing officer to limit the cross examination in the first instance.

 The irregularity in the appeal is even more serious. On August 5, 1970, several days after the July 27 hearing had closed and, one day before Carrier's letter of dismissal on August 6, Carrier initiated further inquiries concerning some of the facts on which evidence was taken in the hearing. On the night of August 5 Storekeeper A. C. Petersen questioned an employee whose letter of complaint about poor conditions in servicing cabooses had been entered into the hearing record. In Mr. Petersen's presence another Carrier official asked questions about the letter and then Mr. Petersen asked if the employee "had anything against" the claimant. Mr. reterscn was one of the officers in the line of appeal of this case and he participated in these inquiries before he had heard the appeal.

 The full import of the August 5 inquiries became apparent during the appeal of the claim on the property. In a letter declining the appeal, dated January 13, 1971, Mr. E. L. Cochran stated in pertinent part:

        "A further check on August 5 and 6, with Assistant Terminal Superintendents T. L. Watts and P. D. Hare, who are in charge of the Kansas City Yard the second and third shifts, had their assurance that it was not possible, and on page 16 of the transcript. Also, Mr. Watts and Mr. Hare said they had never requested caboose supplymen to service cabooses on moving trains, nor had they ever used foul language to these employes. Mr. M.S. Bowers, Road Foreman of Engines, also denied that he had requested the six cabooses be serviced 16th.

                    Award Number 19591 Page 3

                    Docket Number CL-19823


        "A check of records in the General Car Foreman's Office revealed that Caboose UP-25242 was placed on a train at 7:25 P.M., and the train departed 7:50 P.M., July 16; Caboose UP25610 was placed on a train 7:30 P.M., departed 8:40 P.M., July 16th; Caboose NW-562812 was placed on a train 8:30 P.M., departed 9:25 P.M. July 16th; Caboose UP-25265 was placed on a train 9:00 P.M., departed 9:55 P.M., July 16th; Caboose UP-25442 was placed on a train 4:35 A.M., departed 5:40 A.M., July 17th; Caboose UP-25503 was placed on a train 1:30 A.M., departed 1:50 A.M., July 17th. Head Watchmen R. L. Hill was notified these cabooses were still on the caboose servicing track at 5:55 P.M. on July 16, 1970.


        It is c:)vious -rom the foregoing that Mr, hilliams falsified his caboose report forms on the evening, of July 16, 1970, and that the char-es against him were sustained.


        Would also advise you that with reference to page 19 of the transcript where Mr. Williams stated that he advised Mr. Petersen, both verbally and written, that he was supplying cabooses without proper protection, having reference to blue flag protection out in the yard, Mr. Petersen has never received such information, either verbally or in writing.


        With regard to Mr. Williams contention on page 19 that men come down and knock the switch lock off with a knuckle pin to let the engine out, check revealed that in the past five years only one Stores Department padlock was issued as a replacement at the caboose track. The lock replaced was later found in a mud puddle come distance from the switch stand. It vas not broken and there was no evidence of it being knocked off with a knuckle pin."....


The foregoing brings into the appeal record statements from four witnesses (Watts, Hare, Bowers, July 27, 1970 hearing. Yet their statements bear directly on the factual issues raised at the hearing. Not having been subjected to claimant's rights of cross examination at the hearing, statements should not have been considered by Carrier in determining claimant's appeal. Obviously the statements were considered.

 Thus we have a case where, although the evidence in the hearing record is sufficient to sustain the finding of guilt in the first instance, serious procedural irregularities are manifest of record and cannot be ignored. The irregularties, in sum, are as follows: (1) the hearing officer improperly limited the scope of cross examination on the subject of safety; (2) an appeal officer participated in inquiries made outside the hearing record and before he had heard the appeal on the hearing record; and (3) statements not subject
                    Award Number 19591 Page 4

                    Docket Number CL-19823


to cross examination in the hearing were considered in denying claimant's appeal. These irregularities, in combination, tend to approach - but do not reach in this case - the point at which the Carrier's action might be set aside for lack of due process; however, the irregularities pass the point at which a mere admonition would suffice. We believe therefore that it is appropriate to take cognizance of the procedural irregularities caused by Carrier by reducing the measure of discipline. Accordingly, we shall sustain the claim to the extent of reinstatement of claimant with all rights unimpaired, but we shall deny the claim for compensation of was loss.

        FINDINGS: The Third Division of the Adjustment Board, upon the whole record and all the cvic_enc~, finds and hold;:


        That the parties waived oral hearing;


That the Carrier and the Employes involved in this dispute are respectively Carrier and Employes 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 Agrcemcnt ;vas violated.


                    A W A R D


        Claim sustained to the extent indicated in Opinion and Findings.


                          NATIONAL RAILROAD ADJUSTMENT BOARD

                          By Order of Third Division


ATTEST:
 Executive Secretary

 Dated at Chicago, Illinois, this 14th day ofFebruary 1973.

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