IfSec. 5 Representation at Hearing: The fireman or hostler accused may have a representative of his choice present at a hearing to assist him in presenting his case. The accused and his representative may remain throughout the entire hearing, hear the testimony of all witnesses and interrogate them, if desired. In case of conflicting testimony, witnesses giving same will be brought together."

it is the position of the Organization that Section 5, when there is a conflict in testimony, means that the witnesses will be brought together face-to-face. In this particular case the accusing witness, Ms. Gonder, was not present at the investigation but was questioned over the telephone. The Organization contends that since Ms. Gander was not present. i.e., not "brought together" with claimant at the investigation, claimant was therefore denied the fair and impartial hearing provided for in Article 38.

It is carrierys position that Article 38, Section 5, merely provides that the witnesses will be brought together and that the-rule is silent with respect to the manner in which they are to be brought together. carrier argues that in this particular instance the witnesses were brought together by virtue of the use of a telephone. It points to the fact that the complaining witness was not an employee of the railroad and there was no way the railroad could subpoena her and force her to attend the investigation.

The.Board must note here that despite the language contained in Section 5 of Article 38, and the fact there was conflict in the testimony of the complaining witness and claimant, the record before us fails to reveal that Carrier made any effort to contact Ms. Gander in order to have her physically present at the investigation, electing instead to ignore the language in Section 5 by solely relying on the telephone presentation. In matters of this nature, which carrier considered serious enough to warrant dismissal from service, it is the opinion of this Board that Carrier was required to make every effort to comply with the literal language of the rule which provides that where there is conflicting testimony "witnesses giving same will be brought together." Rather than merely rely on telephone testimony, such as here involved-, the rule at a minimum required Carrier to make a - serious effort to have the accusing party available at the investigation. _f such effort failed to produce the witness, then resort to telephone testimony could be considered as an alternative.

The question before this Hoard is whether or not Carrier's failure to produce Ms. Gonder at the investigation can be considered sufficient to rule that claimant was denied his right to

It is the opinion of this Board that in phrasing the language of Article 38, Section 5, the parties certainly intended that there be a confrontation between witnesses giving conflicting testimony, and, in the case of witnesses under Carrier's control,. the rule must be read in such fashion to provide face-to -face confrontation. In those instances, such as here involved, where a witness is not under Carrier's control and Carrier lacks the wherewithal to force such witness t0 attend, then an alternate confrontation, such as via telephone testimony, appears to he a logical solution if justice is to be served.

in view of the circumstances in this particular case the Board will rule that the telephone confrontation between claimant and Hotel employee Danielle Gonder was within the parameters of the language of Section 5 of Article 38 and we will deny the Organizations procedural argument that Carriers failure to physically produce Ms. Gonder at the investigation denied claimant his right to a fair and impartial hearing.

The record is clear that in her telephone testimony Ms. Gonder Clearly set forth her complaint about what occurred in the hotel lobby on the date in question. Ms. Gonder was thoroughly crossexamined by claimants representatives. The record is also clear that even though he had the opportunity to do so, claimant at no time sought to inform Ms. Condor that her accusation was totally false or that the incident as she reported it did not actually-occur. in fact, the record is clear (Tr. Page 125) that when claimant was asked if he had any questions for Ms. Gonder he shook his head in the negative. This Board is then left to wonder why claimant made no effort to defend himself against the accusation made by Ms. Gonder. We have here a situation where claimant, through his Organization, is contending he was denied the right to a face-to-face encounter with his accuser yet he declined his right to question her when given the opportunity.

Based on a close review of the complete record before us, it is the conclusion of this Board that there was an incident which occurred in the lobby of the Reston Hotel and there is a strong inference that claimant was involved. Claimants failure to react to Ms. Gander's testimony, when given the opportunity to do so, does not reflect in his favor. The Board, however, does not believe the decision to dismiss claimant from service was warranted. Dismissal from service, the ultimate penalty, should only be imposed upon presentation of clear, concise and substantial evidence. All that we really have before us is a complaint by Ms. Gonder that the incident occurred and a denial from claimant that his actions that evening were inappropriate.

Under the circumstances it is our decision that the action to dismiss claimant from service cannot be upheld. At the same time there is evidence that an incident did occur and that claimant was somehow involved; therefore, we do not believe claimant should be rewarded for such involvement.

It is therefore the decision of this Board that claimant be returned to active service with all rights unimpaired but without pay for time lost-

Claim disposed of as set forth in the above opinion. Carrier is instructed to comply with this award within 30 days of the date hereof.

4V

. MCC , Orq zation Member

CARRIER FILE NO. 1025502