PARTIES TO DISPUTE:

STATEMENT OF CLAIM: Claim of the American Train Dispatchers Association:
Request that Train Dispatcher C. D. Chambless be cleared of the charges (dated October 14, 1982) and his record posted accordingly, that he be restored to his former position, and that he be paid his net wage loss.
OPINION OF BOARD: Claimant C. D. Chambless is a Train Dispatcher assigned to
 Carrier's Birmingham, Alabama Train Dispatch office. On
 September 29, 1982, he issued Track Time Form 23-A, No. 39 to Maintenance of Way
 Foreman Sanders. It resulted in rail being laid between 12:23 p.m. and 3:30 p.m.
 in a tunnel between Winburn and Sterrett, Alabama. The basic charge against
 Chambless is that he issued the track time contrary to the instructions
 of Chief Dispatcher W. K. Bice to keep the line open for movement of trains
 and tonnage. Following a hearing, Chambless was found guilty of disobeying
 Bice's instructions. He was issued a 30-day disciplinary suspension, which is
 disputed here.
The Organization raises a fundamental procedural argument. It asserts Chambless did not receive a "proper hearing" in that a "fair and impartial" hearing was not conducted. This argument must be considered before any evaluation of the merits is undertaken.
Needless to say, the Carrier has "in its hands the basic machinery of the judicial process upon the property". (Third Division Award No. 17311.) The responsibility for conducting an investigation is the Carrier's. An investigation "is precisely what the term implies". (First Division, Award No.20906.) It is an opportunity to develop fully all facts related to a charge. "A11 material evidence must be heard. This evidence is not confined to that which alone will support the charges. For this purpose a reasonable latitude is allowed to all interested parties for the presentation of the facts." (Ibid.)
Thus, investigatory hearings are designed to get the facts. They are "not to prove the guilt of the accused. (They) must be fair and impartial... Otherwise, the investigation would be a mockery and likely a miscarriage of justice would result". (Second Division, Award 2923)
These are "serious procedural requisites and the party who ignores them does so at the peril of its substantive case". (Fourth Division, Award 3137)
                    Locket Number TD-25694


We have carefully reviewed the transcript of the investigatory hearing conducted in this case. We are constrained to conclude Claimant was not provided a fair and impartial hearing. Several factors prompt that conclusion.
To begin with, we note that the Hearing Officer initially directed that the witnesses be segregated. That was a perfectly proper procedure. Once adopted, it is necessary to adhere to it throughout the hearing. Yet, the Hearing Officer elected to have the key witness (Bice) against Claimant return to the hearing room as he was about to testify. When reminded that witnesses were to be segregated, the Hearing Officer stated that he had recalled Bice to the room "so he can hear what Mr. Chambless has to say about this issue..." Told that Bice was "not under charge", he insisted that he wanted Bice "to hear what Mr. Chambless says." Asked why, he replied "Because I want him to know what Mr. Chambless says in this investigation and hear it right from Mr. Chambless' own mouth". Asked "why" again, he replied "Because I want him to do that, that's why".
in our view, the Hearing Officer plainly erred here. Having made a procedural determination to segregate witnesses, he should have applied it in a consistent manner. Moreover, it was not necessary for Bice to hear Claimant's testimony directly. Bice was not responsible for making an evaluation of the record; the Hearing Officer was. Claimant was entitled to testify without the threat of intimidation which his direct Supervisor's presence could present.
Second, when Bice was open to cross-examination, the Organization's Representative asked whether he had also issued an instruction to Claimant on September 28, 1982. The question had not been completed when the Hearing Officer interrupted. He objected to questions being entered on dates which preceeded the September 29, 1982 incident. The Organization's Representative took "strong exception". He said, "if you had waited to see what I had to say, you would have found that it pertained to the 29th". An off-therecord discussion ensued. Upon i stated the area which the Organization's Representative wished to explore "has nothing to do with the issues" at bar. He affirmed his initial ruling. The Organization's Representative, again, took "strong exception". He insisted the document discussed off-the-record "is very pertinent to the events on September 29th".
When cross-examination resumed, the Hearing Officer twice registered a "violent objection" to questions posed to Bice. He warned him that if such questions continued, "I 'm going to ask you to excuse yourself from the investigation".
It is clear to us that the Hearing Officer erred seriously. It is one thing to try to keep a Hearing on track. It is quite another to issue rulings which unduly limit the ability to conduct an effective crossexamination of a key witness. If admission of a possibly pertinent line of inquiry, it should be on the side of admission, not exclusion.
                    Award Number 25640 Page 3

                    Docket No. TD-25694


Moreover, it is imperative for a Hearing Officer to project a proper judicial demeanor. It is inconsistent with that responsibility for him (her) to register "violent objections. (Emphasis added.)
In sum, we are constrained to conclude that the net effect of the Hearing Officer's rulings and demeanor were of such a nature as to cause reasonable doubt as to the fairness and impartiality of the investigation conducted. Claimant was fully entitled to one under Article 10 of the Agreement. Under the circumstances, we have no choice but to set aside the discipline imposed. The claim here is sustained.
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 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 Agreement was violated.


                        A W A R D


        Claim sustained.


                          NATIONAL RAILROAD ADJUSTMENT BOARD

                          By Order of Third Division


        ATTEST: . Nancy.. :p6ver - Executive Secretary


        Dated at Chicago, Illinois, this 30th day of September, 1985