(American Train Dispatchers Association PARTIES TO DISPUTE:

STATEMENT OF CLAIM:

OPINION OF HOARD: On May 21, 1984, Claimant allegedly caused a near collision
 by permitting a train on a track occupied by maintenance of
 way employes and equipment. The Organization states that due process was
 denied when the Hearing officer limited the testimony he would allow concern
 ing defective blocking devices. Also, the Claimant was inadequately trained
 and therefore should not bear the full brunt of the incident.

 The Carrier claims that due process was provided, and Claimant had been disciplined for a similar occurrence where a collision actually occurred. Dismissal for the second offense is not excessive.

 The Hoard finds that the Carrier committed a serious procedural error. When the organization was was posed relating to any possible known defects in the operation of the blocking devices. Before a response was made, the Hearing officer immediately said to the organization's Representative, "Mr. Murphy, I am going to have to ask you to contain your remarks to the captioned matter in your questions, please." By preventing this line of inquiry from going forward, the existence of possible mitigating circumstances could never surface. The Claimant's rights were violated by the stricture that was imposed.

 However, had the line of questioning been successfully pursued by Mr. Murphy, we are persuaded that the excluded testimony, at best, would have been mitigative, rather than exculpatory, in nature.

 Wye turn then to the merits. The evidence at the Investigation showed that Claimant allowed a tr presence. The gang had been given permission to be on the track by the Claimant. The testimony prese gang is convincing, and is not seriously challenged.

 Wye agree that dismissal would not be excessive, absent mitigation or procedural error. Mitigation would not, of itself, result in total remission of the discipline warranted in this case. The Claimant has been out of service almost three years. W The Claimant shall be restored to service, but without backpay.
                        Docket Number TD-26330


        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 was excessive.


                        A W A R D


        Claim sustained in accordance with opinion.


                            NATIONAL RAILROAD ADJUSTMENT BOARD

                            By Order of Third Division


Attest:
        ancy J. et -Executive Secretary


Dated at Chicago, Illinois, this 12th day of December 1986.