Upon the whole record, after hearing, the Board finds that the parties herein are Carrier and Employees-within the meaning of the Railway Labor Act, as amended, and that this Board is only constituted under Public Law 89-456 and has jurisoiction of the parties and the subject matter.

Claimant herein, Foreman A. Jimenez, had been employed by Carrier in 197;1. Me had an unblemished record up to the time of the

incident. herein. He had been promoted to Foreman in 19>3_. Claimant -had been charged with sellino waste oil and diesel fuel to an outside (non-employee) individual over a period of many months in 1986. These charges resulted from an investigation b,. Carrier's special agents who were concerned about the theft of waste oil from the West Colton yard. Following a hearing, Claimant was found to be responsible for accepting payment for personal gain in exchange for Company property, namely, the waste oil and diesel fuel. and also for making false and misleading statuments. He was thereafter dismissed from service.

The record of the hearing in this matter is the crux of this dispute. It appeared that the only witnesses on behalf of Carrier wore two special agents, Leiutenan is Frye and Travino, of the Carrier's police department. These officers presented as their testimony an interview which they had had with an outside individual who allegedly had paid Claimant for the wastQ· oil. This -outside individual, as the interview indicates, was confused, was not -sure of Claimant's name, was not sure of the dates of the .inc.idnn is acrd indeed was not sure whether he paid ti; cash or checks. but claimed to have used both over a period of time. No cancelled checks were presented as part of the nvidenne. Hey eve-_·n indicated that he couldn't remember, but believed, that

the checks were made out to Southern Pacific Transoortation Comoany. Claimant denied any wrong doing whatever and denied that he had sold Company waste oil to any outside vendor or

It is clear that Carrier's case is bottomed on a credibility finding by the hearing officer. In this instance, that credibility finding credits an interview conducted by two Carrier police officers against the testimony and veracity of the Claimant. It must be observed as a fundamental matter of- both equity and due process that the Claimant must be given an opportunity to confront his accuser and cross-examine hits, if required. In this instance there was nothing but hearsay an the part of the two police officers who could not indeed be cross-examined with respect to the facts. There was no attemot whatever to accord Claimant proper due process in the course of this investigation. He could not respond to a written statement. for- that statement could not be cross-examined. It is apparent from an analysis of the entire record- that Carrier has not e=stablished by substantial evidence guilt on the part or Claimant. His Claim must be sustained.

Claim sustained: Claimant shall be reinstated to his former position with all riqht= unimpaired and made whole for- all loses sustained (less outside earninos).

Carrier will comply with the Award herein within 30 days from the date hereof.

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