Case No. 174
 NMB No. 174



CSX~TR ANSPO TATTON C.
 VS.
 j1T= T ANS ORTATt~ON
STA OF .:f .AIM: Claim of Conductor D. R. Walker for clear
 record and pay for all time lost (5 days) for
 alleged violation of Safety Rule 91, AprnU3,
 1991.
 ST.ATENiENT OF FACIS: On App 3,1991, Conductor D. lw Walker
 (hereinafter claimant) was assigned to CSX Train 470-03; at approximately
 1000 hours such train was opsating near Franklin, Vislinia when claimant
 was allegedly observed by FRA Inspector G. S. L7omtnedieu to be
 working without wearing the required safety eye wear. Although the FRA
 inspector made no timely comment concerairg the alleged violation, the

following day he filed an official (inspection) report, which contain-d, its

aU the following discipline-y remarks:
 PLB No. 3953 AVIwd Wk t?4 PW Na. Z









As a result of this repna-t Claimant Walker A-xc timttx noticed to appear for an investigation. Prior to mch.investigation the carrier made a decision not to summon Inspector L'Hommedieu as the only witness, electing to enter. his (sic) official report through the post incidenr (hearsay) conversation between ?Messrs. L'Hgmmedieu and Assisunt Portsmouth, Trainmaster E. E. Prater, During she hearing the organization's represitntative strongly protested the carrier's failure to have the P'£tak iapector available th testify,

 citing Article 3, Section t(.4) of the UTCJICSX Schedule Agreement; such

 contractual excerpt s=s is putinent part as folows:
"NM 3953 Amid N0. 174 lyeNo.3
Following the protested hearing Division Manager J A. Drake reviewed the record disregarded the procedural objections and published his conclusions,

 stating in pertinent part as follows:









Such decision was timely challenged by the organization (L.oal Chairman

 Foster) who described two faW flaws as follows:

      "Claimant wm not xforded due process in the investigation that was hen due to the fact that be was not erffo:3ed the pi,-lege of qnesdooiag the witness %rho prefnrd the chzrgc qairss It=a. Toe witess. Mr. G. S. L'Hommodien, a .`-.`-.decal iapeator W7s not rest at the ivresdgatiort to give testimony. Our agreement under 4rdcle :0 (a) stt^s taut the axused will be pctitted to interrogate all witnesses. Mr. L'Ho=odieu w%s listed as a wimm in the let- of invesigntioa but uzs na: pr-Tsar m be qu.-riontd. Doatmecs prepxred by ~;m were "sexed rsd =eyed is ~az:x's edibit A yet 0aiasnt could not question bim about the do:atuen: p:aasted ~_s to his bei-ag absent.-.


                        9 1 9 7

lV%o,3933
 AxedNe, 174
 h`e .h0. i

      Aidde 31Q states: Nil= discipline is rmdered requiring actual stt:peasion, such =Tend= go] eammenx tai (i 0) days Mowing notice of smpemioa frlimsnt's letm of dis4lins stood; The aWiaaion of this disFptime vvM be '%i"dd mail a3& rime you tetmn to se:vicx utd WW am=== on the fins day .%= tstma to service. This is a violation of Article 31


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such appeal w2s sutnmzrily denied and the dispute was thereafter processed to thus Board for final resolution. FNMN-(35: Undo the whole record and all the evidence, after hearing, the Board finds that the parties herein are carrier anti employee within the meaning of the Railway Labor Act, as amended, and this Board is duly constituted by agreetaent and has jurisdiction of the parties and subject

 ~M
 The "tlzta=ss appearance° obligations contained is the cited contract
 ptoMons 1>:s been interpreted by many Boards to only obligate the carrier
 to exert its best effort where uztmessts use trot employees or otherwise under
 manag ement's control. In such chum-stances, Boards have historically
 teJrxed the rules of -evidence (ae :";ssib:lity) in accepting prepared
 stn:-bents and/or hearsay evide_ce. However, in this particular dispute the
 Y0. $133 Aced Its 174 lade ", s
carrier appeared to make no reasonable effort to summon Inspeesor
 LTommodieu. Such inaction is exacerbated by the additional fact that
 there were no other witnesses, and the alleged violation appeared to be one
 which exclusively turned on personal obser%ido= Although we are
 reluctant to ignore official documentary evidence prepared by an official
 (FR,k) inspector, who is outside the cacti er's employ, the FR.A report in this
 instan ce does not identify the claimant by name; it only makes reference to
 a peweived timelassigamentlcamductor. Such omission is aggravated by the
 fact that such iaspsadmittedly talked (observed} to sev era! other
 ces-men on Train 470-02, thus undescoring ilse importance of soecilic
 identification.
 Based on the unicpte ci.-cumnarc·s involved we believe the carrier eared in not emnitg ray effort to procure the only witness for cross · -tioL Although our ruling is rooted is the collective bargaining agreement, the parties are ewned not to extend our (due process) ruling to aspxt:s wMch see factually matt,-.guishable.
 naW,M A"i M& 174 hoc f f

 We make no fin&& or ruling on the other procedural and/or

 subs=ive issues raised in this apPeal.

 Claim sustained on procedural grounds as outlined in award.

 Carrier is directed to ilapiemalt this award within 30 days of the eficective

 date hereof

 DON H. HAYS, NwzrafiA£embc

 Fe S. ECK Carrier M=caber A. i» .ffM or gaaizatxoa member