Parties United Transportation Union
 to and
 Dispute Burlington Northern Railroad Canpany
 Statement Claim of Yard Person H. Lang for all time lost fran
 of January 14, 1981, through and including January 28, 1981,
 Claim fifteen (15) days, and that all mention of this matter be
 stricken from her record.

Findings: The Board, after hearing upon the whole record and all evidence, finds that the prties herein are Carrier and Employee within the meaning of the Railway Labor Act, as amended, that this Hoard is duly constituted by Agreement dated March 16, 1982, that it has jurisdiction of the parties and the subject matter, and that the parties were given due notice of the hearing held.

On December 3, 1980, Claimant H. Lang was employed as Yard Foreman on the 11:30 PM Westend Yard Switch Assigrment at Carrier's Yardley, Washington, facility. Claimant completed her assignment without a reported incident. However, under date of Deter 4, 1980, Claimant was sent notification which, in pertinent part, stated:











The rescheduled investigation was held on December 29, 1980, resulting in a letter of discipline to Claimant under date of January 14, 1981, stating, in pertinent part:









Organization advances the appeal vigorously arguing that Carrier denied Claimant a full, fair and impartial hearing when it failed to call essential witnesses, the other Yard Crew that was on duty and working in the same area and same tracks at the approximate time of

                      _3_ Award No. 10


Claimant's assigrment, despite repeated requests for the calling of those witnesses and objection to the hearing officer's failure to ca3.1 the witnesses.

Organization further avers that the proofs are speculative and haled urn "guesstimates" of times four switching moves involving Track No. 10 as well as "guesstimates" of times that the other crew, headed by Foreman Decker, were involved in the handling of cars shaved in Track No. 10.

Carrier responds to the arguments pointing out that the evidence replied upon by Carrier points almost exclusively to Claimant's involvement. Additionally, Carrier points out that by Claimant's run testimony, Foreman Decker's involvement could only have occurred before Claimant became involved in any activity on Track No. 10, since Decker's crew occupied the lead until they were done with their work on the rip-track, thus permitting Claimant access to the lead and her switch moves.

A review of the transcript reflects that at appmximateiy 5 am. Claimant's crew was given a list of cars for Track No. 3 to switch; the list consisted of 13 cars, 3 of which were to be placed on Track 10. Claimant switched out the majority of the cars and then placed 3 cars on Track 10 with, by her testimony, enough room to clear the lead. Claimant contends that it was not necessary for her to shove the track to place than in the clear. According to the record, prior to Claimant's switching Track 3, another crew, working at the other end, had placed 6 cars on Track 10 while switching Track 11.

Carrier replied upon testimony of the approximate time of switching moves based upon the Yard Supervisor's entries of the PICL'd times.

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                      -4- Award No. 10


Through vigorous cross examination, Claimant's representative developed that the times were not exact, that they could be off as much as 10 or 15 minutes or even greater amounts of time.

The amount of time and the discrepancy of those times are unclear. Mat is clear is that Carrier, based upon a reconstruction of the events by respective supervisors, focused on Claimant as the culprit. Decker's assign:aent was involved in the use of the subject track, the shoving of cars to it, all in the same band of time.

Claimant's representative pointed out to the Hearing Officer the need for Decker's appearance and testimony. The Hearing Officer noted the objection far the record but failed to take any action to honor the request for Decker's appearance.


    Elsewhere in the record, Yardmaster Ervin testified:


          Q - Do you, in your mind, didn't feel that it was necessary to .nun a list of 10 to find out whether there was room in that track?


          A - No, because I had run one earlier, say, within the hour, and it showed that there was sufficient roan for those three cars.


          Q - In your judgment, based on those record that you have, was Mr. Decker's work completed before Mr. Andersons work?


          A - Yes, it should have been, yes. At least the 49 which was PICL'd at 4:45. He may have filled on working on 18 - the second list he had, but the switching that was PICL'd at 4:45, of track 49, that was enough.

      Q - Any other questions of Mr. Ervin? A - Yes.


          Q - Mr. Ervin, referring to this time that Mr. Anderson's crew had oarcpleted their move, was this referring to Track #11?

      A - Yes.


          Q - And they cacrpleted that move at 5:45, is that what it shows?

A - It shows that it was PICZ'd at 5:45. The PICA.
 Clerk did the work on the tract at 5:45.
 Q - And this accident occurred at 6:25?
 A - That is what Mr. Phillips stated, yes.

 (thesis Ours)

No one really stated what time the accident occurred bud the Carrier official involved indicated that it was reported at approximately 6:25.

Claimant tied up at 7:15. tile cars were being switched into Track 10 from the west end, a third yard crew was switching cars on the east end of this yard. The east end cress (Anderson) was given a switch list of Track 11. The east end crew was given their list of Track 11 at approximately 5:45 a.m. The east end crew pulled 11 Track out of the lead, cupped the head 16 cars off to clear 6 and these 18 were then shoved into 6. The east end crew then went back against cars on the lead and pulled the remaining cars up to lead placing them am 2 track. Rule those cars were standing the lead track, cars from Track 10 had been shaved into the side of the cars, resulting in the last car tin 10 Track being derailed and tipped on its side and 11 cars that were standing on the lead were damaged as they were pulled by the derailed car.

Notwithstanding Carrier's best effort to try and sort out and recreate, in the abstract, what occurred by referring to time records that were admittedly riot accurate, the Hoard is canvinoed that Decker's testimony would have lent some clarification, if not possible exoneration, to Claimant, had he been permitted to testify. It remains a mystery as to why the Hearing Officer failed to call this witness who


FLB No. 3193 Award No. 10
                                          PLB No. 3193

                                          Award No. 10


wens obviously involved in putting cars into Track 10 within the time frame that this incident possibly occurred.
 organization cites a number of cases in support of its position that Claimant was denied a full and fair investigations angst them Public Law Board 2806, Award No. 15 (Marks) which, in pertinent part, held:

        ..It was the hearing officer who should have inquired into the need for all meters of both crews to attend, if possible. Surely, hearing officer was repeatedly put on notice of this by the Organization together with risk of failing to have the opposite witness available...

                            (Emphasis Ours)

Also, Public law Hoard 364, resulting in Award No. 27 (Cobuza) which, in pertinent part, held:

        A carrier is not obligated to call as witnesses at an investigation each and every employee whose presence is requested by the Organization. Such witnesses may be unavailable for one reason or another, or their testimony may not be relevant or material. to the subject matter of the investigation. MIere, as here, however, the witness was a participant in the incident giving rise to the investigation and was, therefore, in a position to testify on matters material to the subject matter thereof, it was a denial of due process to refuse or fail to produce him as requested. (See First Division Awards 19910, 20094, 20466, 20906, amarrJ many others.)


        Accordingly, the Board finds prejudicial error on the part of the Carrier in the oonduct of the investigation in this case. The claim will, therefore, be sustained.

The Board is compelled to conclude that the investigation focused on Claimant and the proofs developed at the investigation were marshalled in a way to support a conclusion that Claimant was responsible for the cars on 10 fouling the lead. Organization has argued pre-judgment and we are impelled, on this record, to agree with that argument. The Yardmaster testified that there was roan for the 3

cars planed in Track 10 by Claimants claimant testified that she had no need to shove 10 to put the cars into clear. What happened after Claimant left the cars is the subject of the inquiry. Was the crew working on the opposite end responsible for shoving cars against the west end of 10 resulting in the cars being gushed out the east end? That area was not explored by the Hearing Officer and no witnesses were called to eliminate that possibility.

    As was stated in First Division Award 19873:


        ...managsnent's minds should be held open until the evidence is in and the transcript is studied...

Here the Carrier failed to fully develop the record to exclude other possible explanations. Such limited inquiry, in the circum;tanoes of this case, was inprvper.

Accordingly, on the record before us, we are ooupelled to conclude that the claim should be sustained.


AWARD: Claim Sustained.

      Off: Carrier is directed to make this Award effective within thirty (30) days of date of issuance shown below.


Member D. Ell loyee Member

 A. s Van Wart, Ct:ai~
 and Neutral Member

 Dated: I~Uj. Ii M~

 PLB No. 3193 Award No. 10