Form 1 NATIONAL RAILROAD ADJUSTl·?E'VT BOARD Award No. 8187
 SECOITM DIVISION Docket No. 8013
 2-C&1`Ti-CP:1-' 79



Parties to Dispute: ( (Carmen)


Dispute: Clair. of 1',rrployes:

















Findings:
The Second Division of the Adjustment Board, upon the whole record and all the evidence, finds that:

 The carrier or carriers and the employe or em ployes involved in this dispute are respectively carrier and employe within the meaning of the Railway Labor Act as approved June 21, 193!+.

 This Division of the Adjustment Board has jurisdiction over the dispute involved herein.

From the record suhn:itted ia~ this case we are able to determine the following course of events.

 On May 5, 1977, Clai,.nant vas the principal in a disciplinary hearing concerning a three-da;VT tuiaut'zorized absence. As a result, Cl=~i:ant ores assessed a thirty ( 0) d:-~r :_uspensi on v.hi c'ti ?;ra s se=rved fr°om Kay 20 - June 19, 1977. Recent Second Division Award 7188 upheld the imposition of discipline.
 Form 1 Award No, 8187
 Page 2 Docket No. 8013
 2-C&MVr-Cry-' 79

 Thereafter, Claimant did not return to service. On July 27, 1977, a Notice was issued to Claimant to attend an investigation to be held on August 5, 1977, concerning Claimant's absence "without proper notification or permission on July 6 through July 26, 10/77."

 Receipt of the Notice was acknowledged by Robert Gates, Claimant's father. Subsequently, telephone conversations were had with ClaI.mant's mother, father and uncle, each of whom indicated that they wouU -^elay the information to the Claimant to contact the Carrier. When the Investigation was opened, Claimant was not present, but he was represented by the Local President of the Union. A reques t for a ~,ostponement was made because Claimant's wherea,'aouts were unknown, and because the Local Chai x-nan could not be present to represent the Claim-ant. The request gas denied.

The Employees have argued that the hearing i-rjs improper because it is alleged that C? airnant did not receive the: Notice of Investigation, thus justif~ring his absence from the investigation. However, while the conclusion that Claitmant had not been informed may be draim from the facts of record, an equally valid conclusion vrould be that Clairant had been appraised by one or all of the means E:I:1~7~_O': t~d by tl?c Ca-- °*.t',`f and tha"G he S''.3'.~1`.3..~i choa I70 t to attend. The E mt)lo,rees have argued that the Carrier was well az-rare of Claimant's difficulties as a result of the prior investigation. Yet, Clail~.ar.~t was in attendance there; and no contention has been raised here that Carrier's means of notification to the Claim=ant vras less diligent.

 Other than their assertion, the FLioloyees have submitted no probative evidence that Clair.iant was not notified~ of the t'lutust 5, 19? 77, hearing. In Third Division Award 224,08 (Franden), we stated:

However, the Employees, in appealing this matter on the property, assert that T:Ir. Diesch (trial o'ficer) told the Claimant at the end of the prior investigation that:

This assertion iras made in .e initial an peal letter of the L~n:ployees (October 4, 1977), and at each successive level of appeal on the property. No response to this statement is to be found in the Carrier's replies made while the matter remained on the property. Thus, this Board is confronted with the established. principle that in discipline cases we are con''-.ned to the transcript, and the eaua:Ll. valid arg~unent that there were mitigating
 Form 1 Award No. 8187
 page 3 Docket T1TO 8013
 2-C&hU-C 1'1I-' 79

 circumstances raised on appeal which were unrefuted and must be accepted as facts by this Board.

 On this record we must conclude that that transcript supports the Carrier, but that the mitigating circumstances require that the discipline be less than dismissal. Claimant is to be returned to service without back pay; the time out of service to be considered a suspension.




                          By Order of Second Division


Attest: Executive Secretary
 National Railroad Adjustment Board

 _,/ftosemar:ie Brasch - Administrative Assistant

 Dated kt Chicago, Illinois, this 28th day of November, 1979.