(Brotherhood of Maintenance of Way Employes PARTIES TO DISPUTE: (The Western Pacific Railroad Company

(1) The dismissal of B&B Foreman D. B. Ehorn was without just and sufficient cause, on the basis of unproven charges and in violation of the Agreement (Carrier's File Case No. 11316-1978-BMWE).

 (2) The above charges be stricken from the claimant's record, he be reinstated with seniority and all other rights unimpaired and he be compensated for all wage loss suffered, all in conformance with the third paragraph of Rule 20."





The investigation was postponed by agreement, and conducted on February 27, 1978. Following the investigation, claimant was notified on March 10, 1978, of his dismissal from service, A copy of the transcript of the investigation has been made a part of the record.

 The Organization contends that claimant was denied a fair and impartial hearing because the conducting officer denied claimant's representative the opportunity to question one of the witnesses, B&B Track Inspector Huff. The Board has carefully examined this aspect of the


investigation. After witness Huff had stated that he did not have any first-hand knowledge of the facts under investigation, the conducting officer excused him as a witness. Claimant's representative protested the ruling, and the conducting officer offered to reverse the ruling if claimant's representative would indicate what pertinent facts the witness might have concerning the matter under investigation. The claimant's representative made no direct response. Later the claimant indicated that he desired to question witness Huff because written statements signed by some of the gang members had been delivered to Mr. Huff. The conducting officer then renewed his original ruling as witness Huff had previously stated that he had no first-hand knowledge of the matter. While the actions of the conducting officer in this matter may not be considered exemplary, under the facts indicated we do not consider his actions sufficiently serious as to constitute reversible error or to void the entire proceedings.

 As to the merits of the case, there was substantial evidence produced at the investigation to support the charge against claimant and the Carrier's action in dismissing him from the service. We note, however, that in handling the dispute on the property the Carrier, on July 21, 1978, offered to restore claimant to service, without pay for time out of service, subject to the following conditions:

          (1) Mr. Ehorn (claimant) shall pass a return-to-service physical examination.


          (2) Upon his return to service Mr. Ehorn will be restricted to the exercise of his seniority as a Carpenter; restoration of his seniority as a Foreman will be dependent upon his future performance.


The above offer was rejected by the Claimant.

 Based upon the facts of record, the Board considers the offer made by the Carrier to be fair and reasonable. We will award that the offer, without pay for time lost, again be made to claimant by the Carrier, with the stipulation that it may be accepted within sixty days from the date of this Award. In all other respects the claim is denied.
                    Award Number 22744 Page 3

                    Docket Number M41-22795


        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 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 discipline be modified as outlined in the Opinion.


                      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 29th day of February 1980,