(Brotherhood of Railway, Airline and Steamship Clerks, ( Freight Handlers, Express and Station Employee PARTIES TO DISPUTE: (George P. Baker, Richard C, Bond, Jervis Langdon, Jr., and ( Willard Wirtz, Trustees of the Property of ( Penn Central Transportation Company, Debtor

(a) The Carrier violated the Rules Agreement, effective February 1, 1968, particularly Rule 6-A-1, when it assessed discipline of dismissal on A. H. Harris, Usher, Pennsylvania Station, New York, N.Y., Metropolitan Seniority District.

 (b) Claimant A, H. Harris's record be cleared of the charges brought against him on July 17, 1971.

 (c) Claimant A. H. Harris be compensated for wage lose sustained during the period held out of s
OPINION OF BOARD: Claimant, an Usher at Pennsylvania Station is New York, was
 working a regular shift of from 6:45 A.M. to 2:45 P.M. on
 Saturday June 26, 1971. In a letter dated July 6, 1971 a patron wrote to the
 President of the Carrier stating that on June 26, 1971 he had been abused and
 discourteously treated by Claimant after he had asked whether the train on
 Track 11 was the train for Boston. By letter dated July 17, 1971 Claimant was
 notified to attend an investigation on July 21, 1971, in connection with the
 following charges:





On July 23, 1971, following the investigation, Claimant was dismissed from service. Subsequently, as a matter of leniency because of 26 years of service, Carrier reduced the discipline to suspension and returned Claimant to service on August 20, 1971,

 The transcript of the investigation reveals that the only testimony was that of the Assistant Station Master, the Claimant and the letter from the customer. The letter, taken at face value, indicates that some employee of Carrier was discourteous and abusive; this employee was later identified for the patron by the Assistant Station Master, based on work location or assignment. The Assistant Station Master could only testify on his conversation with the customer - and presumed identification. The testimony of Claimant, unrefuted, indicated that he was not on the platform in question at the time of the incident and of course denies participation in any incident with a customer on that day.

 Petitioner raises the issue of the admissability and propriety of the passenger's written statement, in view of the fact that no cross examination or confrontation was possible. Though we feel that it is highly desirable for t" "accuser" to be present at an investigation such as this, we recognize that is not always possible. However we have said (Award ;)13464):

        "There is no question that the Carrier may use written passenger's statements in considering the imposition of disciplinary penalties. However, in doing so it rune the risk of challenge if the passenger's statements are unsupported by other evidence, or if they fail in the light of testimony by witnesses at the disciplinary hearing,"


It should be noted, however, that this Board has rarely ruled on a disciplinary matter where the only evidence in support of the charge was a written statement from one passenger, with no corroboration whatever. The Carrier has emphasi ire patrons, and its concomittant responsibility to impose discipline. In this case, however, several serious omissions appear, in view of these concerns. It is difficult to understand why Carrier made no attempt to make a positive identification on the day of the concerns above, why Carrier made no attempt to even discuss the matter with Claimant, until after the complaining letter addressed to Carrier's President was received and the charge was served. Further, in view of the seriousness of the charge, and potential remedy, the Carrier must do its best to secure the attendance of the complaining patron; in this instance, at least a letter should have been sent, not merely unsuccessful phone calls.

 A careful review of the transcript reveals that there is insufficient evidence to support Carrier's conclusions. There is substantial doubt as to identity of the employee involved in the incident (see Award 2797) and we do .._t find that the weight of probative evidence can support the charge or the Carrier findings. For these reasons we find that Claimant did not have a fair and impartial investigation as accordance with Rule 6-A-1(h) of the Agreement.
          Award Number 19748 Page 3

                Docket Nund`er CL-19726


        FI17PI1NS: The Third Division of the Adjustment Board, upon the whale record and all the evidence, finds and holds:


        That the parties waived oral hearing;


That the Carrier and the ?mrployes involved in this dispute are respectively Carrier and -R~ployes 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.


                      A W A R D


        Claim sustained (in accordance with Rule 6-A-1(h)).


                          NATIO!1U RAILROAD ADMSTWhV BOARD

                          By Order of Third Division


ATTEST:~ ~ /~ ~
 Executive qecretc:ry

 Dated at Chicago, Illinois, this 11th day of May 1973.

 ,. _