(Henry J. Wesolowski
 PARTIES TO DISPUTE:
 (Boston and Maine Corporation

 STATEMENT OF CLAIM: This is to serve notice, as required by the rules of
 the National Railroad Adjustment Board, of my inten
 tion to file an exparte submission on (30 days from date of this notice)
 covering an unadjusted dispute between me and the Boston and Maine Corp
 oration involving the question:

1. The hearing officer's decision lacked substantial basis in fact as will be more fully shown in petitioner's submission.

 2. Petitioner was deprived of due process and fundamental fairness at the initial hearing because he was denied the opportunity to confront and cross-examime adverse witnesses as will be more fully shown in petitioner's submission.

 3. Petitioner was deprived of due process and fundamental fairness because he was not given advance notice of the adverse information to be presented in suffi as will be more fully shown in petitioner's submission.

 4. Petitioner was deprived of due process and fundamental fairness because the hearing officer s petitioner was denied a fair and impartial hearing thereby as will be more fully shown in petitioner's submission.

 5. Petitioner was deprived of due process and fundamental fairness by being required to defend h types of charges, unauthorized use of a company vehicle and unauthorized sale of company property, simultaneously as will be more fully shown in petitioner's submission.

 6. Petitions: was deprived of due process and fundamental fairness because he was not informed prior to the hearing of the criteria or standards of proof that would be adhered to, as will be more fully shown in petitioner's submission.

 7. Petitioner was deprived of due process and fundamental fairness because he was not informed prior to the initial hearing of the possible penalties as will be more fully shown in petitioner's submission.

 8. The penalty given to Petitioner was unduly harsh in the light of his prior record as will be more fully shown in petitioner's submission.


OPINION OF BOARD: This is a discipline dispute in which Claimant was
 dismissed from service for ".~..the unauthorized use
 of a Company vehicle and the unauthorized sale of Company wire and/or
 other equipment during the past twelve months".

 Claimant's position in this matter relates to both procedure and substance. On procedure, it is alleged that the charge was not precise, the hearing was not cond junk dealer Henry. With respect to the preciseness of the charge, there is no question but that Carrier had the information which could have informed claimant much more definitively of the nature of the accusation. Did the lack of information impair Claimant's defense? Although we can only conjecture on this score, it is clear that his defense was obviously poorly handled at the initial hearing. However, since Claimant and his representative made no objection at the hearing, and did not request postponement, their conduct con be considered further. With respect to the fairness of the hearing itself, a few comments are in ord judge and jury"; he did not act as witness and it is well established that his multiple role is an acceptable one in railroad investigatory hearings (see Awards 20859, 20602, 20027, 17532 and a host of others). There was some question concerning the fairness and due process in the conduct of the hearing on another score. The Carrier's sole witness, Lieutenant Slade not only testified, but in fact conducted the hearing since he was permitted to interrogate all the other witnesses as part of his testifying; he asked almost three times as many questions as the hearing officer. However, as Carrier states, any objection to the conduct of the hearing must be raised prior to the close of the hearing itself; in this case the objection was not timely raised and must be considered waived (see awards 19928, 19916, 16678, and 16261 and many others).

 The appeal hearing upheld the earlier decision to dismiss claimant. It is interesting to note th that hearing, to the letter from the scrap dealer which recanted the testimony he offered at the hea basis for Carrier's position in the entire matter.

 We recognize full well the limitations of the functions of this Board in disciplinary disputes such an this. We do not weigh evidence or attempt to resolve conflicts in testimony, for example. However, we do have the responsibility to evaluate the record to determine whether or not there is substantial evidence in support of Carrier's conclusion that Claimant is guilty. In this ca Carrier has failed to produce that quantum of evidence which can be
                  Docket Number MS-21343


characterized as "substantial" in support of its conclusion. The record indicates that there is no question but that Claimant used a company vehicle without authorization - this was admitted. There also is no question but that Claimant sold copper scrap, including copper wire, to junk dealer Henry. However, there is absolutely no evidence that the wire he sold was railroad property; the only evidence is that he secured the wire from his girlfriend's garage. It must be noted that nowhere in the record is there any reference to Claimant securing the wire from Carrier's property (and indeed no testimony as to the theft of th further, it is apparent that no reasonable analysis of the record would lead one to conclude that there was substantial evidence to prove Claimant engaged in the unauthorized sale of Company property, including wire over the period of time in question.

 There is no question but that Claimant should have been disciplined for the unauthorized use of the Carrier vehicles. Further, his penalty obviously should be considera above reasons we find that Claimant's discharge shall be converted into a four month suspension. He shall be reinstated, with seniority and all other rights unimpaired, and reimbursed for wage lose (less the suspension period) in accord ance with Article VI Sections 6 and 8.

 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 Employee involved in this dispute are respectively Carrier and Employee 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 discipline was inappropriate for the infraction found.


                  A W A R D


        Claim is partially sustained in accordance with the foregoing Opinion,


                        NATIONAL RAILROAD ADJUSTMENT BOARD

                        By Older of Third Division


ATTEST:
 Executive Secretary

 Dated at Chicago, Illinois, this 28th day of September 1976.