NATIONAL RAILROAD ADJUSTMENT BOARD
 Form 1 THIRD DIVISION Award No. 30050
 Docket No. MW-30622




PARTIES TO DISPUTE:

STATEMENT OF CLAIM: "Claim of the System Committee of the
 Brotherhood that:

              (1) The five (5) day suspension of Machine Operator R. J. Riederer for the alleged violation of Rules 10(B) and 607(2) in connection with Burro Crane #00400301 being struck by an unknown object was arbitrary, capricious and in violation of the Agreement (Carrier's File 502-5-A CMW).


              (2) As a consequence of the violation referred to in Part (1) above, the Claimant shall be ' ..compensated for each day of his five (5) day suspension, restored all benefits accrued under the Agreement, reinstated former seniority rights and his record cleared of all charges.'"


FINDINGS:
The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds that:

 The carrier or carriers and the employe or employes involved in this dispute are respectively carrier and employe within the meaning of the Railway Labor Act as approved June 21, 1934.

 This Division of the Adjustment Board has jurisdiction over the dispute involved herein.

 Parties to said dispute waived right of appearance at hearing thereon.

 Claimant was a maintenance of way employee at East St. Louis, Illinois. on June 12, 1991, Claimant was instructed to attend an Investigation on July 1, 1991, for the following:
 Form 1 Award No. 30050
 Page 2 Docket No. MW-30622
 94-3-92-3-371

          ~~ to develop the facts and place

          responsibility, if any, in connection with

          your alleged failure to see that the track

          where burro crane #00400301 was tied up, was

          properly protected from rail or other traffic

          be reflectorized red flag (CS1371),

          Maintenance of Way lock or switch spiked and

          dispatcher promptly notified where required,

          that resulted in burro crane #00400301 being

          struck in the boom section and moved backward

          by an unknown object, which you reported to K.

          W. Watson on June 3, 1991, at approximately

          3:10 P.M., in the vicinity of East St. Louis,

          Illinois."


As a result of the investigation, Claimant was suspended for five days.


The Claimant was working as a track laborer on May 27, 1991 when he was told by his foreman to help move a burro crane to the Gateway Western Railroad. When the Claimant and another foreman arrived at the Gateway Western, the foreman instructed Claimant to unload tie plates using the burro crane. After completing the work, the Claimant left the burro crane where he had performed the work, then returned to his work as a laborer. On June 3, 1991, it was discovered that the Burro Crane had been damaged, apparently after being struck by a Gateway Western locomotive.


It is incumbent upon the Carrier to hold a fair and impartial hearing to develop all the facts of the incident under investigation. The burro crane was left on a foreign carrier, Gateway Western, yet no employees of that carrier testified even though alleged statements were introduced as coming from its train crew. The Gateway Western Trainmaster was not at the Investigation even though there was testimony that he would not let the SPCSL spike the track where the burro crane was left. Neither the foreman who accompanied Claimant, nor the Claimant's regular foreman were made part of the Investigation.


The record as it stands is unclear as to Claimant's guilt. The Carrier's failure to develop all the facts through a fair and impartial hearing leaves the Board no choice but to overturn the discipline.


                        A W A R D


      Claim sustained.

Form 1 Award No. 30050
 Page 3 Docket No. MW-30622
 94-3-92-3-371
 NATIONAL RAILROAD ADJUSTMENT BOARD
 By Order of Third Division

                    ~l~


Attest:
      Catherine Loughrin -:~lnterim Secretary to the Board


Dated at Chicago, Illinois, this 17th day of February 1994.