AWARDS 96 - WITNESS ATTEND CARRIER HEARING - PAID

Fourth Division Award No. 4084 (Lieberman)

"The initial response to the Claim in this dispute is perhaps the key to an understanding of Carrier's position. Superintendent Wetsel in denying the claim said: `Mr. Kitchens did not appear as a witness for the company nor was he cited to the investigation'. In this Board's view (and we are sure Carrier will concur) Carrier does not have the unilateral right to determine who may appear at an investigation on behalf of the charged employee. If a yardmaster is called as a witness under this contract, must he be paid for his time as provided in Rule 10? On a prima facie basis, yes, regardless of whether he is called by Carrier or the Employee. The only condition, as this Board views it, is that if the Yardmaster called presents frivolous testimony or totally irrelevant material, Carrier may refuse to pay for his time, as an exception to the rule. However, the burden falls on Carrier, not individual, to establish the basis for the exception.

"Applying this principle to the case at bar, the Board notes that Claimant's testimony was characterized as `mitigating' in content. Carrier also characterizes it as `not material'. No transcript having been provided, the Board can make no independent judgment with respect to Claimant's role at the investigation. It is significant to note, however, that mitigation is frequently an important element in ultimate decisions as to penalty for rule infractions. Based on the record before us, the absence of evidence that the testimony was either frivolous or irrelevant, and the clear language of the rule, the claim must be sustained."