PARTIES Brotherhood of Maintenance of Way Employees
 _TO and
 DISPUTE: Atchinson Topeka & Santa Fe Railway Co.

 STATEMENT "1. That the Carrier violated the provisions of the
 OF CLAIM: current Agreement when on March 14, 19.86 it
 dismissed Machine Operator D.-L.--Tankersl=y
 immediately following an investigation which was
 neither, `air nor impartial, said action being an
 abuse of discretion.
 The Claimant now be reinstated -to former position
 with seniority and all his rights restorec`,
 unimpaired, and with compensation for all wage
 loss suffered."
 FINDINGS

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

Claimant- had been employed by. Carrier in -1971,_ On the- date in question December 6 (as mall as 16 and 1°) 19$5, Claimant was .:7,ssigned as a machine operator on a weed-mower-in the Fort Worth, Texas; area. By letter dated January 17, 1986 he was notified to attend an investigation in order, to determine whether or not he n.sd violated certain. Carr ier rules in that he-had absented himself from duty wil'1oL t proper authority on December 6,__16 and 18 and



also falsely claimed eight hours' pay on each of those dates. Following are investigation held on March 14, 1386, Claimant was adjudged guilty of the charges and dismissed from service.


The record of investigation reveals (by virtue of Carrier witnesses) that Claimant- did not have-authority -to be absent on the -days i-nvolved and he- was indeed absent on those days. Furthermore, his machine was not operated on any of those days. In addition, there was no report that the machine was out of servsce, nor did an inspection of the machine reveal any defects which would make the mac~irne inoperable. In addition, the evidence is clear that Claimant in fact claimed eight hours' pay on each of the days involved when ,no service-- was ptrFormed. Claimant's response to this evidence was that he had been off or, certain errands and was involved in the maintenance -of his equipment and, therefore, was not absent at all on the days described by Carrier. Claimant sought to have his story confirmed by evidence. One of the witnesses whom he desired to be present


at the investigation was unavailable and he requested that the -
 Nearing Officer c6ll a second witness. The Nearing Officer
 refused to do so, stating "I have to decline that because it is
 too irregular". Claimant had indicated that the witness whom he
 proposed to call had left with him on one of the days in question
 and that he could attest to his whereabouts on that workday.

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Claimant did not have a good work record. In fact, he had been cited on numerous occasions for being absent without authority in the past, and at the time of the incident involved herein, had some 50 demerits on his record. In no instance in the previous infractions did Claimant challenge the propriety of the discipline meted out to him.


The Board is considerably concerned- with the Hearing Officer's conduct of investigation of this matter. To deny the Claimant a witness who is critical to his position is considerably beyond the appropriate conduct of an investigation--- The-investigating officer in all such cases is bound to seek all evidence which might cast light on the critical incident. -His mission is truth,


not "conviction". Having denied the Claimrynt a "key" witness -
 because it was thought "irregular" was the height of indiscretion
 on the part of the Hearing Officer. Under normal circumstances,
 this would be sufficient-to reverse in its entirety the conclusion
 reached by Carrier with respect to the Claimant-However, in this
 instance, in vietw of the egregiousness of the infractions, and the
 clear evidence that Claimant did not indeed operate his machine on
 the days in question, and in light of previous records, that would
 seem an inappropriate conclusion. Therefore, it is determined
 that Mr. Tankersley will be reinstated on a last chance basis to
 the position -of Trackman with all rights unimpaired, but he will
 not be reinstated as an Independent Machine Operator until such
 time as he demonstrates to the Carrier's satisfaction that he can
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perform as an Independent Machine Operator. He, of course, will not be compensated for time lost, which will be considered to have been a disciplinary lay-off.


AWARD

          Claims- sustained in part. -Claimant will be reinstated to the position of Trackman on a last chance basis with all rights unimpaired but without compensation for time lost until such time as he can demonstrate to the Carrier's satisfaction that he can perform

          as an Independent Machine Operator.


ORDER

          Carrier will -comply with the Award herein within thirty days of the date hereof.


              -----------------------------

              I. M. Lieberman, Neutral-Chairman


G. ~.

      220

      Garmon CF. Foose

Carrier Member Employee Member
 Chicago, Illinois
 JAY JZ, 1988 -