PARTIES) UNION PACIFIC RAILROAD COMPANY
 TO )
 DISPUTE) BROTHERHOOD.OF MAINTENANCE OF WAY EMPLOYEES

 STATEMENT OF CLAIM: Claim that the discipline of 45 days suspen
 sion imposed on California Division Trqck_Fo_rem_a_n__S__ A._ Sowa for
 alleged violation of Rules A, B, J, L, 1510, 1511, 607(1), 607(2),
 609, 4000, 4001, 4152, 4153 and 4160 was arbitrary, capricious
 and unwarranted. That the claimant's record shall be cleared of
 the discipline and he shall be paid for all time lost.

 FINDINGS: This Public Law Board No. 4338 finds that the parties herein are Carrier and Employee within the meaning of the Railway Labor Act, as amended, and that this Board has jurisdiction.

 In this dispute the claimant was notified to attend an investigation on September 3, 1986 to determine his responsibility in the charges that at approximately 10:00a.m. on August 6, 1986 while backing section boom truck 1915-62554 onto railroad right of way near First Street and East End..Avenue, Pomona, California, he allegedly struck a traffic light, knocking it over, which caused approximately $1,200 of damage to City property, which was a possible violation of General Rules A, B, I, L and Rules 1510, 1511 of the Maintenance of Way Rules effective April 28, 1985 and Rules 607(1), 607(2), 609, 4000, 4001, 4152, 4153 and 4160 of Safety, Radio and General Rules for All Employees, revised April 28, 1985.

 The investigation was held on September 9, 1986, and pursuant thereto the claimant was assessed 45 days suspension. Claimant had been offered a 30 day calendar suspension by letter dated August 12, 1986 but had refused.

 At the commencement of the investigation the claimant's representative requested that the company witnesses be separated.-- The hearing officer denied this request. Claimant's representative was apparently requesting that the witnesses be sequestered, and normally this request would be granted.

 This is generally a requirement if the witnesses are testifying as to the same occurrence where hearing other testimony might refresh or influence their own testimony. The Board will review all the testimony of record and then determine if the denial of this request is prejudicial.

 Roadmaster K. W. Hargraves testified that he received a report of the accident on August 6, 1986 and his Assistant, R. A. Woods, investigated the incident.



The evidence indicates that tho claimant section foreman was
 driving the boom truck which struck atrafffic_sinal pole and -
 knocked it over while the truck was being backed onto the rail
 road right of way from the street.

 The Board realizes that an investigation is not a court, but the hearing officer should direct witnesses to answer-questions when asked. Questions, if possible, should be answered "yes" or "no" and then the witness, if he deems it necessary. may explain his
 answer. - - -

 It is noted on Page- 10 of the Transcript that K. W. Hargraves
 did not directly answer the question by the claimant's repre- _
 sentative, and the hearing officer overruled an objection made - _
 by the claimant's representative. One can assume that the answer -
 may have been an indication of the witnesses' opinion, but such
 an assumption should not be necessary. -This is not a serious
 error, but the hearing officer should recognize this fact. -

 The Board is also concerned that the hearing officer denied _
 Witness K. W. Hargraves the right to answer a question regarding
 past incidents where employees of the railroad have been involved.
 The claimant's representative explained to the hearing officer
 that he was aware of similar cases involving employees who were
 issued demerits. In other words, the claimant's representative
 was attempting to establish disparate treatment of employees.

 This is a permissible--defense. =It is an affirmative defense and one which must be proven by the one making such an allegation. The witness should have been allowed to answer the question.
 Nevertheless the burden of proof is upon the Union in this case. -
 Again the Board wishes to stress that there is no attempt to
 place court rules or any such on the parties, but the Union
 should be allowed to present proof that there was disparate
 treatement in assessing discipline.

 Mr. Hargraves further testified that he believed a 30 day sus-
 pension offered to the claimant was fair. The evidence further -
 establishes that the claimant did not have a back-up man outsi.cle
 the truck, The claimant stated he was in a rush to get the truck
 out of traffic.

 The Board has reviewed all the testimony of record, including that of the claimant, as well as the exhibits submitted. The
 refusal to sequester witnessesherein is not prejudicial in this _
 case since the testimony of any one witness herein would not
 affect the testimony of another witness. - -

 Also it is noted that the Union did not present proof to establish that other employees with similar discipline records had committed a similar offense and had been assessed lesser amount of discipline. For those reasons there is no basis for setting
 the discipline aside. -
                                          y336

                                          Award No. 8

                                          Page 3


However, the officer who conducted the investigation, K. W. Hargraves, testified that he believed a 30 day suspension was reasonable. The evidence indicates that perhaps the hearing officer determined that since the claimajit refuse_d__to accept a 30 day suspension, he would assess him 45 days for such refusal.

 Under the agreement between the parties, the claimant has the right to an investigation and a hearing. Simply because he refused to accept the discipline offered, the Carrier is not then
 justified in assessing more discipline than is reasonable. For -
 the foregoing reason the discipline assessed will be reduced
 from a 45 day suspension to a 30 day suspension.

 AWARD: Claim disposed of as per above.

 ORDER: The Carrier is directed to comply with this award within thirty days from the date of this award._ ,___._____ _ ,

                              r`l~- ~7~a4ee.t_

                              Preston J, Moore, Chairman


                              Union klember


                                  (. rc~-

                              Carrier Member


Dated: No-ember 10, 1987