__ ·. AWARD N0. 25







          Chicago and North Western Transportation Company


      STATEMENT OF CLAIM:


          1. The assessment of a sixty-day (60) day suspension upon Machine Operator Earl Hicks was without just and sufficient cause and in violation of the Agreement. Carrier's File (D-11-17-366)


          2. Claimant Earl Hicks shall be allowed the remedy prescribed in Rule 19(d).


          OPINION OF THE BOARD:


          On October 18, 1980, the Carrier directed the Claimant to attend


      an investigation on the following charge:


          "Your responsibility, if any, in connection with your violation on October 13, 1980, at approximately 10:00 a.m. of Rules 7, 11 and 12 of the Chicago and North Western Transportation Company's General Regulations and Safety Rules effective June 1, 1967."


      Rule 7 reads:


          "Employees are prohibited from being careless of the safety of themselves or others, disloyal, insubordinate, dishonest, immoral, quarrelsome or otherwise vicious or conducting themselves in such a manner that the railroad will be subjected to criticism and loss of good will, or not meeting their personal obligations."


      Rule 11 reads:


          "Playing practical jokes, scuffling, wrestling or fighting while on duty or on Company property, as well as throwing of tools, materials or other objects is prohibited."

                          g~hb-as 2

                          1. 1 f y

Rule 12 reads: ,

    "Employees must not enter into altercation with any person,

    regardless of provocation, but will make note of the facts

and report such incident in writing to their immediate superior." The charges were made in connection with an alleged altercation between the Claimant and Assistant Foreman S. Springs.
 The Organization argues that the charges were not proven and that the hearing officer prejudiced the Claimant when he failed to call and hear testimony from four witnesses who were present when the incident occurred.
    The Carrier argues that the charges were proven and the discipline

was warranted. In regard to the allegation that a fair hearing.
 was not afforded, they make several points which will be discussed
 below.
 In regard to the issue of failing to call witnesses, we make the following observations. It is well established that it is the responsibility of the Carrier hearing officer to provide a fair , hearing. This responsibility includes, as is well noted, the duty to develop all material facts both far as well as against the employee. The investigation is not an adversary process but its function is to develop the facts regarding an alleged rule violation. It is not just an exercise in prosecution. -In this case, the Carrier called to the hearing but did not ask to testify four employees who were present in the vicinity of the altercation. One of~these witnesses was Foreman Chavez who allegedly separated Claimant and Springs. As noted at the'hearing, the Organization objected to the failure to ask these witnesses to testify. The hearing officer held fast in his refusal to ask the employees to testify. The only witnesses
 ' - PLB-2960 3
                                              AWD. N0. 25

                                              CASE N0. 26


      who had testified at this point were Assistant Foreman Springs, the Claimant and an Assistant Roadmaster who was not present when the incident occurred. It is noted the testimony of Springs and Hicks conflicted significantly. The hearing officer then offered to allow the Organization to call the witnesses and they declined. The Carrier argues in their submission that the hearing officer determined that the testimony of the other witnesses was not necessary and that because the Organization failed to call the witnesses when they had an opportunity to do so precludes them from arguing that the Claimant was denied due process.

          It is our opinion that the failure to ask questions of

      witnesses called is not a per se violation of the CTaimant's right.

      to a fair hearing. The Carrier's obligation to question witnesses -

      ends when-a RE IM facie case is established. The Carrier is not -

      obligated to question witnesses who have nothing material to offer.

      However, when a hearing officer refuses to question available wit

      nesses and closes the hearing before a pr ima facie case is established

      and further concludes the employee under charge is guilty, the

      judgment of the hearing officer is highly suspect . In this case,

      the Carrier did not establish a pr ima facie case based on substantial

      evidence before concluding additional witnesses were not necessary.

      As a result, it cannot be said the Carrier has sustained the necessary

      burden of proof. The fact that employees, who were eye witnesses,

      were not called, distracts from and casts significant doubt on the

      nature of the evidence. In the face of contradictory and conflicting

      evidence, the hearing officer failed to utilize available evidence

that would have in most probability shed light on what really happened. Without the testimony of these employees, we cannot come to any meaningful conclusion as to what really happened. The hearing officers conclusion of guilt based on insufficient testimony was in error. Our finding should not be interpreted as substituting our judgment for that of the hearing officer. The Board as an appellate body is to review the evidence as a whole and make a determination: as to whether his conciusion is supported by substantial evidence. . In this case, there is not enough evidence to support his conclusion that it was not necessary to call other witnesses. The error could have been avoided by questioning the material witnesses already called to the hearing by the Carrier.
    In coming to the above conclusion, we have rejected the Carrier's

argument that.the Organization.waived its right to object to the
 Carrier's failure to question the witnesses. It is true that the
 Organization declined to question the witnesses. However, this
 does not change or modify the Carrier's burden to present sub
 stantial evidence in support of the charge. The burden to question
 witnesses and present a defense doesn't shift to the Organization
 until the Carrier has established a RE IM facie case. We do not
 believe by not questioning the Carrier witnesses that the Organization
 waived its right to have the charges supported by substantial evidence.
 It is our opinion that a pr ima facie case based on substantial evidence
 was not established, therefore, the discipline must be- overturned
 as it is not supported by substantial evidence.
 PLB-2960
 AWD. N0. 25
 CASE N0. 26

 AWARD

Claim sustained.

Carrier ordered to comply within 30 days.


G Vernon, LIM rman

 ra or eh

 Harper, Employe member