1. Carrier violated the terms of the Current Agreement, particularly Rule 21, when under date of August 7, 1973 it dismissed Mr. E. P. Kloubec, Agent at Wheaton, Illinois from the service of the Carrier; and


        2. Carrier shall be required to compensate Mr. E. P. Kloubec, from August 7, 1973 forward, for all time lost at the rate of his regular position at Wheaton, Illinois, to include premium and benefit entitlements accruing from Travelers Insurance Company Policy No. GA-23000.


        OPINION OF BOARD: Claimant has raised a number of procedural objections to

        the conduct of the hearing, suggesting a predetermination of

        guilt and improper rulings concerning receipt of evidence. In most part, we feel

        that the objections are speculative and conjectural and do not materially effect

        the outcome of the dispute. We do feel,_however, that the refusal to receive.

        certain evidence from an employee in Carrier's Real Estate Department deserves

        comment, and will be discussed below.


        A review of the entire record cleanly establishes that a lingering feud between Claimant and Mr. Grace (concerning the parking of Grace's automobile at the station) errupted into a verbal (and possibly a physical) altercation during the morning of July 19, 1973.


        While both Claimant and Grace contend that the other party was the aggressor; it was clear that act of writing "No parking" on the windshield and another piece of glass on Grace's car.


        It has long been held by this Board that its function does not extend to disturbing resolutions of questions of credibility when witnesses offer varying accounts at an in hearing. Carrier chose to credit Grace's version of the incident - that Claimant was abusive by language and actions, and that Grace was assaulted and spat upon. Grace's version was, to some extent, confirmed by another witness. We cannot state, from a review of the record, that the credibility determination was arbitrary and/ or capricious. Accordingly, we find that Carrier has presented substantive evidence, including Claim


I
                  Award Number 20853 Page 2

                  Docket Nusber CL-20972


At the hearing, Claimant gave testimony concerning his continuing dispute with Grace and he referred to discussions with Carrier Officials and employees of the Real Estate Department. When Ricketts, an employee in that department, was called as a witness, Claimant's representative sought to question him about illegal The Hearing Officer refused to receive such evidence, but rather, he limited testimony to the specific incident of 10:00 a.m. on July 19, 1973.

 We feel that such a ruling constituted error. We cannot concur with Carrier's contention that testimony is properly limited solely to the precise incident which gives rise to a charge. To do so would preclude considerations - at all levels of the proceedings - which could have significant bearing on motivation, condonation, intent and a variety of pertinent background information. While a Hearing O of leniency in allowing a Claimant fully to develop his case within the basic framework of materiality.

 In this case at issue, we feel that the Hearing Officer was overly, restrictive when he failed to allow Claimant the opportunity to question the witness. Although we feel that the ruling was erroneous, a full review of the entire record fails to show - in this particular case - that the error was prejudicial to Claimant's in this area, his testimony demonstrated that his specific instructions from the leasing department were received subsequent to the confrontation with Grace. The record fails to show that Claimant was precluded from establishing any evidence as to instructio have been reasonably pertinent to the dispute. If the record contained such a suggestion, the prejudicial nature of the error would have to be examined within that framework.

 While we are mindful of Claimant's years of service, the record demonstrates that the incident i taken against Claimant in a period of less than three years.

 We find no basis in the record for disturbing the carrier's determination.

        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 Employee involved in this dispute are respectively Carrier and Employes within the meaning of the Railway Labor Act, as approved June 21, 1934;
                Award Number 20853 Page 3

                Docket NMber CL-20972


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

        That the Agreement was not violated.


                    A W A R D


        Claim denied.


                        NATIONAL RAILROAD ADJUSTMENT BOARD

                        By Order of Third Division


ATTEST:
        Executive Secretary


Dated at Chicago, Illinois, this 24th day of October 1975.

LABOR =M'S DISSR<^IT 710

AWARD 20853 IDoCket CIr-20972)

Referee Sickles


Award 20853 is in palpable error. Covanencing with the concluding sentence of the fifth paragraph, the following observations are found in the "Opinion of -bard":

    "The Hearing C_"icer refused to receive such evidence, but

    rather, he li =tad testimony to the specific incident of

    10:00 a.m. on July 19, 1973.


    "We feel ,hat such a ruling constituted error . . . While a Heari^~z: Officer should not open the door to receipt of an endless series of immterial testimony; at the same time, he should exercise a degree of leniency in allowing a Claimant full;,- to develop his case within the basic framework of materiality.


    "In this case at issue, we feel that the Hearing Officer was overly restrictive when he failed to allow Claimant the opportunity to question the witness."


Despite the abovef_-,:oted language, the majority turned to infinitesimal issues and bland r==soninrl= to reach an astonishing conclusion which leaves the minority no a-=ernative bttto dissent, to wit: "We firri no basis in the record for dis~;:ubing the Carrier's determination."

 The above quotations nuke clear that the majority of the Board recognize that Claimant was not given several points: 1) obstruction of cross-exarrdnation by the conducting officer; 2) the he _ ing officer cc^rdtted error in refxsi·?3 to receive certain evidence, -z not allowing Clairrant to fully develop his case, and in.being overly restrictive by failing to allow Claimant the opportunity to question :he witness. In the face of the full well that the -aramount purpose of an imvestication is ':o develop the facts in the c_epute at issue, the majority nonetheless -::as able to arrive at a decisi=n denyin^ the claim! The result is a slap on the e.-rist for the conductinF, -ificer°, which is quite unlikely to affect his future conduct of invest i-tions, and total condemnation of the victLTized employe.

    Award 20853 is in palpable error and requires most vigorous dissent.


                          i~ r/Gz2Cl j~l ,C ", `~


                            Gerald Toppen 0//)Y~ 11-19-75 1-zLor i%orrber