Docket No. 260

                                        UTU File No. T 37310/600

                                        Case No. 30912-D

Parties United Transportation Union (T)
 to and
 Dispute The Baltimore and Ohio Railroad Company
 Statement "Request of Brakeman R. B. Davis for removal of Discipline Entry from
 of Claim: his service record and pay for all time lost in connection therewith
 including Health and Welfare payments and benefits denied."
 Findings: The Board finds, after hearing upon the whole record and all evidence,
 that the parties herein are Carrier and Employee within the meaning
 of the Railway Labor Act, as amended, that this Board is duly
 constituted by Agreement dated February 19, 1974, that it has juris
 diction of the parties and the subject matter, and that the parties
 were given due notice of the hearing held.

        This claim involves the same factual background as involved in

        Docket 259, resulting in Award No. 224 the finding of which by

        reference thereto are made a part hereof. A major distinction, how

        ever, as between this docket and that of Docket 259, is that here

        Claimant was adjudged guilty of that for which he had previously'

        been charged.


        However, here, as in Docket 259, the absence of the NEW Foreman in charge of the equipment involved in the collision after his presence..

f~ /L)t,)- 31,;L -2- Award Ho. 225

        was determined pertinent and such presence was requested and denied, is- deemed to be substantive error. The refusal to postpone the investigation while the witness could be brought in prevented ascertaining an important element as to why and how a collision environment was permitted to develop. We find Carrier's hearing officer was arbitrary and capricious in denying the Local Chairman's request.


        The circumstances of the conclusion reached.and the evidence adduced indicated that Claimant should have been held accountable. However, the degree of discipline imposed is mitigated by the procedural deficiency. Consequently, we sustain the Claim except for "Health and Welfare Payments." The Board notes that it would have otherwise denied that portion of. the Claim concerning "Health and Welfare Payments," as well as "benefits denied" absent a causal showing.


Award: Claim sustained as per findings.
 Order: Carrier is directed.to make this Award effective within thirty (30)
 days of date of issaance below. , `

 A. F. White, Employee Member ' F. B. Plummer, Carrier Member

            . . Arthur T. Van Wart, Chairman and. Neutral Member


Issued at Baltimore, Maryland, August 2, 1977.

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