S'ji?ElfyNT OF CAM
Claim of Engineer D. R. xuertz that he be paid for all time and benefits lost that he would have earned or received on the etanufaaturers RailVay Company for the period December 15, 1983 through January 13, 198·, and that he be paid for attending the hearing held on December i, 1g&3, and that his record be cleared of all charges arising from the alleged incident occurring on November 3, 1993 while working as engineer of the 3:00 p.m. Crew.

 YIHDTNCS AND- DPIRION
The Ek9ard, aftat hearing upon the whole record and all the evidence, finds that the parties herein are the Carrier and Dmployee respectively within the meaning o£ the Railway Labor Act, as amended; that this board is duly constituted under Public tare 84-456 and has jurisdiction over the parties and dispute involved herein; and, that the parties were given. Ame notice of the hearing thereon.

 Claimant was the engineer pn the Carrier's $:GO p.p· Jvb an Novefnber 3( 19a~. Several boctra into their assignment, the crew on this lob pulled off the Hi-line onto the Brewery Ruin with nineteen carload's of beer that were tg be shoved into Track No. 6 River Yard. During the process of shoving into Track Ho. 6, five cars in the middle of the train derailed. Eetorv the Claimant stopped tire train, however, the derailed cars sere shoved over five hundred feet on the ground Cone of the derailed cars was shoved aidevays :for over a hundred feet) vausig_q damage to the rail and ties which necessitated repair. On November IZ, 1983, nearly two weeks after the incident, the Carrier's Superintendent preferred charges against all members of the 3:40 p.m. Job crew for their "tileged negligence, carelessness and failure to properly perform ttheirl duties ,.. [on] November 3, 1983, which. resulted in an accident! derailment that occurred at or about E:45 p,s. on the evening of November 3, 1983, at the north end of the River Yard on the areuery Main Track.**x"*

 * In. addition to the Cigiftant, the other crew members subject to shit investigation were the foreman, fieldman and headman. The foreman. WAS also charged with an alleged violation of Rule 14 of Bulletin Ho. 14: and.6*11.eti
 n EQ. 91 of the "Bulletin of Special Instructions Applicable to 9mplalfes in the Operating Department".
 Ausxrd Ma. 10
 'PL3 No, 4500 Came No. 19

 The hearing on the charges contained itt the notice of investiqatiaa was held on December 1, 19&3. pollowing the tearing, the Superintendent rendered a decision on December 13, 1g&3. Sawed on iris review of the testimony and related evidence, he determined that the Claimant and foreman of the crew were responsible far the derailment of .five cars and the resultant damage-to the track after the derailed cars were shoved a considerable distance on the ground. In the same breath, he found no evidence supUcating the other crew members and absolves them of any blame in this accident. since the ,superintendent held. the Claimant and foreman "equally guilty", they both received suspensions of thirty days.*

 In Appealing the claimant's suspension, the Organization clan unable to resolve the inatart alalpe on the property, SubaeVently, the Organization progressed the contested claim to this Board for final adjudication.

 Here, the Organization attacks the Carrier's disciplinary action on procedural and substantive grounds. On the question of procedure, the Organization focuses on certain irregularities in the investigative process which purportedly denied the Claimant his contractual rights to a fair and impartial hearing. The Organixation initially contends that the Carrier improperly used two officers to conduct the hearing in the claimant's case. This occurred, according to the Organization, when the Superintendent actively participated in the investigation by passing notes to the designated hearing officer notorithatanding the objection voiced by the Claimant's representative. Moreover, the Organization argues that the hearing officer compounded this procedural irregularity by denying the Claimant's representative's request that he be allowed to review those notes. It as the Organization's position that thin aspect of the investigation deprived the Claimant of his due process. Coupled with this complaint is the Organization's aasartion that the superintendent's multiple roles as the "original charing officer", "co-conauctiny officer", "witness", and ultimately the "judge" who determined the Claimant's quilt and assessed discipline, subverted well established adjustment Board authority relative try a fair and impartial investigation. The Organization submits that the ccabination of such inconsistent roles assumed by the Superintendesst similarly prejudiced the Claimant's rights.

 Another procedural defect observed by the Organization concerns the actual conduct of the hearing officer. The Organization specifically maintains that "iris actions, when reviewed carefully, demonstrate bias, a tendency to ignore

 · Despite their shared guilt, the Claimant and foreesan filed individual claims disputing the Superintendent's determination acid assessed discipline. Each claim to dealt with in separate Board auyrdsx. The foreman's claim, trierefore, is discussed ire Award No ii Qaog..f 2Q.

EVard No. ifl
 PLH Ho. 4500 case go. 19

 essential facts, expreaaion of his own .ideas, preconceived opinions, ... argme#tative attitude (andt lavoritiym for the Carrier opt every iaaUa ...." (¢roanizatio ~ut~nixsicn, p. 7) The Organization opines that the hearing officer was primarily interested in establishing the amount of damage caused by the derailment than in developing the facts and conducting a ?rearing within the parameters of fairness and impartiality. Insofar as the Organisation is concerned, 3u~ prejudged the charges against the Claimant in deprivation of hips entitled right to an objective and unblemished inquiry of the November 3, 1903 incidect. The ~rganizatlou believes that the Claimant's thirty days' suspension should now be set aside with pay for time lout because the Carrier's determination of his guilt was the product of a procedurally flawed and unfair investigation.

 With respect to the merits of the case, the Organization ceatends there was no substantiating evidence that the Claimant eras careless or negligent while performing his dFaties when the accident occurred on Track No. b River Yard. The Organization declares that he did not cause the derailment, nor shoulei he be held accxuntabla for the damage to the track after the derailed cars were shoved over five hundred feet on the ground before he stopped the train. As noted by the organization, Claierant shoved the train into Track too. 6 River Yard with the engine throttle in the fourth position at a speed of nix miles per hour, Which was well within the ten miles per hour speed limitation in the yard. It is further indicated by the Organization that in the process of shoving the nineteen cars into Track No. 6 River Yard, the first seven. cars passed over the switch point (where the derailment actually occurred) without incident, but that the riddle five cars of the consist climbed the switch point which caused then to derail. On this very point, the Organization maintains that the Claimant should not be blamed for what happened since all the witnessesr including the Carrier's Roadmastzr and Chief Engineer, testified that the deraiisarlt spas the result of equipment climbing the switch point. The Organization apecificalxY refers to the Foadmaster's testimony which also indicated that a combination of other factors nay have cauatd the derailAaat; e. g., the flatneax of a wheel of a certain car will get on a point arid possibly drop off,, or where a car is shifting from aide to side when being shoved and derails when a certain amount of pressure hits ono aide. Such factors, the organization asserts, Kere not within the Claimant's control.

 The Organization avers that the carrier failed to sustain its burden of proof since there was no demonstrable evidence to prove the Claimant guiltY of the alleged offense. Despite the absence of negligence or a rule violation on tile claimant'* part, the organization stresses that he was unjustifiably punished merely because a darailmant occurred. Alternatively, the Orgaaisationt an the merits, necks tree fard'a reversal of the Claimant's thirty days' suspension.

 in denying the claim, it is the Carrier's overall position that the Clailaaiit was properly charged, given a fair and impartial ,hearing, acid found guilty as charged on the probity of the evidence. The Carrier rejects the Organization's
 Award ft. 10
 FLB No, 45(10 Case go. 19

 nation that the Claimant's guilt v4s pre)udged or that its hearing officer acted with bias toward him during the investigative proceeding. prom a procedural ata«d,point, the Carrier thus disputes. the Organisation's assertion that the hearing officer conducted the- investigation in an argumentative and manipulative m4nner. in defending the role of the hearing officer, the carrier believes that it craw his responsibility to develop 411 the facts in search of the truth regarding the cauacs of the derailment and the claimant's involvemerot in that incident. The Carrier maintains that he properly carried out his responsibility Without compromising the Claimant's contractual due process rights. Stated otherwise, the Carrier holds to the view that no procedural errors wore committed by the hearing officer in the conduct of the Claimant's savestigatz.on.

 Despite the apparent difficulties the hearing officer encountered during his probe of some of the Witnesses at the investigative hearing (whose testimony, in the Carrier's judgment was less than credible), the Carrier submits: that he wag able to adduce sufficient probative evidence on the Claimant's guilt. Such evidence, the Carrier avers, proved that h$ was inattentive to his assiqnmeut while shaving the train into Track No. 6 River Yard. Insofar an the Carrier is concerned, the Claimant's purported failure to properly perform his duties seas a factor which contributed to the derailment and damage to the track.

 To support the finding of guilt in the Claimant's case,. the·* Carrier refers to uncontroverted proof revealing that the five cars which derailed at they switch conaectian were subsequently shoved aver five hundred feat on the ground; and that o6e of the five cars war shoved on the ground sideways for a distance exceeding one hundred feet "with the trucks on both ends of the car digging deeply into the ground burying ones complete set of trucks all the way down to the cartrame." (Carrim',a Submission, ir. 4) Is. addition, the Carrier notes that several hundred feet 4f rail and ties were extensively damaged. This particular evidence, according to the Carxia~r, discredits the claimant's version that he was sMvang the train with the engine throttle in the fourth position and that the train came to a amoothr gentle stop. Contrary to the Claimant'd plea of innocence, the carrier argues that the extent of the drrailnent can be traced to his "lackadaisical" handling of the train at the time of the occurrence. Under the circumstances surrounding this incidents the Carrier firmly balitvea that the discipline he received was neither Oarsh nor unjust.

 Os. the mtritsf thereforep the Carrier asserts that it slot its burden of proof with coapetent evidence substantiating the Ckdimaat'a guilt upon which his disciplinary pGaalty was fixed. Consequently, this Board is urged by the Carrier to affirm his thirty days' guspensioo.

 The Board has carefully reviewed the record in this Case via-awls the objection* raised by the Organization questioning the procedural regularity o£ the Claimant's investigation. Bince other members at the Moveabtr 3, 1483 3:00 p.m. .Job crew were charged with the Cliituant in the same notice of
 Award Yo. 10
 fs No. 4500 Case ft. 19

 'investigation and involved in the sane proceeding as he, the Board's procedural inquiry must treat with the investigation record in its entirety rather than confine its scope to that portion denting only with the Claimant. should there be any quarrel with the ,Board's position, the parties are reminded that the Claimant's guilt a71 determined by the carrier eras not limited solely to his testimony but drawn from evidence contained in that whole record-

 Here, the Orqaniaation's complaint alluded to several procedural errors, the gravity of which concerned the propriety of the Superintendent's and hearing officer's conduct in the course of the inveatiqativt process. These obejcxsons, which take precedence over the substantive aapecta of the controversy, adversely affect the Carrier's determination of she Claimant's quilt.

 Initially, the Organization objected to the abeets of paper or notes the Sup*rintindvat paneled to the bearing officer during the direct exaniaation of the foreman of the area who, like the Claimant, was under investigation for his role in the November 3, 1983 derailment., The objection dealt with the hearing officer's refusal to allow thus employee's representative (who also represented the Claimant at the hearing) to inspect these sheets and/or notes after he asked to see them. In the Doard'e opinionr the hearing officer erred when he arbitrarily refused the representative's reasonable request to see this material. As a ratter of procedure, where written memoranda, notes or other documentation is submitted to the heariaq officer in the course o£ a formal investigation, much material in subject to examination by the parties involved in the proceeding. The hearing officer in the instant investigation gave the accused employees' representative the opportunity to review memoranda written by the Carrier's &oadaraster and Chief Engineer which were presented at the hearing. It was of little consequence that the latter documentation (relative to the xovswl~er 3, 1343 derailment) was later introduced into evidence whereas the Superintendent's notes ware not. The atcuxad employelr's representative was still entitled to inspect any and all material brought to the hearing officer's attention irrespective of its relevancy or lack thereof to the investigation. Suffice it to nag, the error committed by the hearing officer in this instance was an inexcusable mistake in procedure,

 in the lama veanf the Organization objected to the Superintendent's active participation in the investigative hearing. According to this objection, the Superintendent's participation in the hearing elevated his to the status of "co-conducting officer", While the Hoard understands the: reascninqbehind this objection, the note passing incident referred to herein cannot be broadly construed as placing his in the capacity of a "co-conductinq officer". YQtr the Board finds his involvement is the bearinrfr albeit of limited duration, improper conduct perceived as prejudicing the rights of those subject to the investigation vhicb.wnbraced the Claimant. Collateral to this objection, then Board finds another flare in the investigation where the hearing officer allowed the Superiateudent to be present during the exazination of witnesses (including the Claimant). In this instance, too, the hearing officer procedurally erred
 Award NO. 10
 FLH Ho. 4$00 Case No. 19

 `since he sequestered all witnesses except the Superintendent who later
 testified. 9imgly put, he should not have been allowed in the hearing room
 until he was summoned err testify. Moreover, this error in procedure Wa4
 grievously strained when, the same Carrier officer, who originated the charges
 against the Claimant, attended the hearing and then briefly testified,
 ultimately dete mined his quilt. The superintendent's conflicting. roles caused
 a glazing defect in the accusatorial process which proved detrimental to the
 Claimant`s right to a fair and impartial investigation. On this precise point,
 First Division Award go. H259 held: "The position of witness with exazinsr and
 judge are not compatible. adiv is required as
 a witness for the carrier he should therefore pat further participate in the
 inv t' 'cn av RA,~_ vj_1,." (Emphasis added) Consistent with this
 authority, the Superintendent was required to recuse himself from further
 involvement in the investigative process by delegating the authority to decide
 the claimant's fate to another carrier officer (e.g., the ,assistant
 superintendent). As already maationed, his failure to do so compromised the
 Claimant`s contractual due process rights.

 Due to the disturbing effect these particular procedural irregularities had on the Claimant's rights, there can be ro other ruling but to nullify the carrier's determination of bas quilt ant( the disciplixke he received as a consequence thereof. Both were the product of a fatally flawed investigation.

 In view of the foregoing, it is unnecessary to dwell on the remaining procedural objections raised by the Organisation. The Boaid, ever cognizant of those Objections, is persuaded to make a fixlal cwt. Mbil.e the hearing officer's concern for the truth cannot be faulted his overzealous endeavors in trying to aseartain the truth was quite dubious. Unfortunately, in his quest he lost sight of the fact that the role of presiding officer at an investigation vas not of an adva:aarial nature but akin to an unbiased neutral.

 Since ihia dispute ham been decidvd an prpcqdural grGBRd3, there is no need to discuss the factual merits. For the reasons stated herein, the Claimant's discipline shall be set aside, Accordingly, the Carrier .!tall pay him for ail time and banafitc lost for the period of hit thirty days' suspension ti.a., from December 15. 1915 through January 13, 1984). He shall also be paid for having attended the December 1, 1983 investigation. Such compensation still be based on the applicable rate of pay that was in effect at the time of the Claimart'a suspensi-0ri. rurther, the Carritx shall expunge from his eAployment record any and all reference to the aforementioned disciplinary action.
                            -7-


Award Bo. 10
 pLI No. 4500 Case No. 19

 C1si. sadtaiard.

 ORaSR.

 7hs Carrier will casply with the terms and conditions art forth in this Award within thzrtT (301 days of the: date hereof.

                  CIA

                    Charles P. Pischbach

                    Chairman and geutral Her


s- ,e~.~t,. Y'
 William J. Lam , Carrier ffemL;r C~ 1~4~L. Git e. Em epee Member

 bated at Chicago, Illinois, this 31th day of August, 1989