PARTIES- Brotherhood of Maintenance of Way Employes

 DISPUTE: Chicago and Nbrth Western Transportation Company

        .(1) The dismissal of Trackman J. T. Negrete for alleged violation of EDxle G'was without just and sufficient

        cause- on the basis of an unproven charge and in,

        violapion of the Agreement. -


        (2) Claimant J. T. Negrete shall be allowed the .remedy prescribed in Rule 19(d)."


FINDINGS:

 This Board, upon the whole record and all the evidence, finds and holds that the emoloyes and the carrier involved, are respectively employes and Carrier within the meaning of the-Railway Labor Act'aspamended, and that the Bbarci has jurisdiction over the disrute herein.

        The claimant was employed as a trackman on the Carrier's

Chicago Division. About 11:20 A.M., Nbvember 18, 1983, the- -
 Assistant Roadmaster was informed that claimant had sustained a
 personal inJury in the vicinity of Mayfair. Tower. The Assistant
 Rbadmaster went to the location where claimant was working, found
 him sitting on the ground; holding the left side of his face, and .
 noticed thet-he was bleeding. The Assistant H-oadmaster trans
 ported claimant to the medical center-in his (the Assistant Road
 master's) automobile, and, according to the Carrier, noticed the -
 distinct odor-of alcohol on aiaimant. Upon arrival at the treat
 ment facility, the Assistant Roadmaster-statedthat the odor was .on
 claimant's breath.

 A language barrier existed between the claimant and Carrier's officers. The use of an interpreter was necessary, and through the interpreter-the Assistant Roadmaster asked claimant to take a blood test, which request was declined.

 On November 21, 1983, the Assistant Division Manager - . Engineering, instructed the claimant to attend a formal Investigation on November°23, 1983, on the charge:

      "To determine your responsibility, if any, in connection with your violation of Rule (P on Friday, November 18, 1983 near Mayfair at acproximately 11:15 a.m."

                                                Sa.a- gay ~

                                                Award NU YY Docket No. Page 2.


        The investigation was postponed to December-6, 1983. A copy

of'the transcript of the December 6, 1983, investigation has been
 made a part of the record. The Assistant Division Manager
 -8hgineering testified at length in the December 6, 1983, investi
 ga tion and on December 9, 1983, issued discipline of dismissal
 agaanst claimant . .. .

        In the appeal on the property and in its submission: to the

Ebard, the Organization has contended~that claimant was denied a
 fair and impartial hearing, as required by the Agreement, as a
 result of the roles of the Assistant Division Manager-Engiheering
 as the charging officer, as a witness in the investigation, and as
 the deciding officer: This Board does not usually give m4ch weight
 to so-called' due process arguments concerning multiple roles by the
 same officer; such as the same individual issuing the charge, con
 ducting the investigation, rendering the decision, and at times
 acting as initial appeals officer. Ebwever, when we have the same
 officer~issuing the charge, testifying in the investigation, and
 then rendering the decision, we have-a more serious situation.
 As stated in Award No. 73, Public Law Board No. 2960, involving
 the same parties as involved herein:-

        "It is difficult to accept that a material witness can review and issue discipline.in an impartial. way."


See also First Division Awards Nos. 21398, 8259, 8376, 10616, 11910, and Third Division Award No. 19062.

 With the roles of the Assistant Division Manager-Engineering as accuser, a material witness, and deciding officer,-we are forced to the conclusion that claimant was denied a fair and impartial
 hearing: The claim must be sustained. _

 We,-note also that some question has been raised as to the right of claimant to representation in the hearing. Employes are entitled to representation in on-property disciplinary hearings only as Drovided.for in the agreement. See recent Third Division Awards Nos. 24998, 24999, 25000, and the court cases and otherawards cited therein. As we have decided the present case on othergrounds, there is~no necessity for passing upon-the representation issue raised:.

                        A W A R D.


      Claim sustained.


                        ORDER


The Carrier is directed to comply with this Award within thirty days hereof.
                                              ,!5.& A- ~D V Award No. 44 Docket` N'O . 54 Page 3.


                    hairman, Ndutral Member---


'arrier Member ~SLabor Membex°-

 Dated: ~~Q-~-t 29