Form 1 NATIONAL RAILROAD ADJUS'1.'MENT BOARD Award No. 9162
 SECOND DIVISION Docket No. 9219
 2-CMStP,P-EW-'82
 The Second Division consisted of the regular members and in
 addition Referee Thomas V. Eender when award was rendered.
 ( International Brotherhood of Electrical Workers
 Parties to Dispute:
 ( Chicago, Milwaukee, St. Paul and Pacific Railroad Company

 Dispute: Claim of Employes:




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 employes involved in this dispute are respectively carrier and employe within the meaning of the Railway Labor Act as approved June 21, 1934.

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

The Claimant in this matter was employed as a crane operator on September 6 or 7, 1978; he was subsequently terminated on January 2, 1979 for excessive absenteeism. During the Claimant's fotr (4) month career his attendance record was singularly abysmal. The Claimant's record shows:











Form 1 Award No. 9162
 Page 2 Docket No. 9219
 2 -CMS t P&P-EW-' 82
 Date Absent Reason For Being Absent
 December 1, 1979 No reason given
 December 4, 1979 No call - No reason given
 December 7, 1979 No reason given
 December 8, 1979 No reason given

Given the Claimant's record, this should be an easy case. As we have noted before,we have no particular patience or sympathy for an employe who fails to protect his job, and this employe's record is awful. However, the problem in this case centers around the fact that the Carrier gave the employe notice of the investigation just prior to the commencement of the hearing.

 The Claimant's statement at the investigation is about as disjointed and incoherent as anything we have seen in some time. Further, the Claimant's representative made no statement whatsoever. No objection to the notice of investigation and no request for a continuance was made. Now the problem might be dismissal on the basis that if the representative did not make any objection or request for continuance the matters can be deemed to have been waived. Indeed, this is the exact position taken by the Carrier's Asst. Vice President Labor Relations during the appeal. The Carrier also states that the following exchange supports the fairness of the hearing as well as the clarity of the charge:



Yes what? Yes that is the charge or yes, I was absent and did not call in? This exchange does not get us over the hurdle of Rule 23 which provides:

During the entire investigation the Carrier did not explain or indeed even attempt to explain why it could not give the Claimant a simple five (5) day notice. This topic was not even obliquely addressed.

 The function of an investigation is to gather facts so that a reasoned decision can be made. This was absolutely impossible in this case. The Carrier officer in charge of the investigation was is such a hurry that lie asked his own witness, Foreman Johnson whether the investigation was conducted in a fair and impartial manner. Foreman Johnson did answer in the affirmative.
Form 1
 Award No. 9162
 Page 3 Docket No. cr2l9








The Claimant shall be returned to work. However, his attendance record is so bad no back pay is awarded. Any other disposition would not do justice to the long and respected tradition of Labor Relations in the Railroad Industry.

    Claim sustained in accordance with the Findings.


                              NATIM4Z RAIIROAD ADJUST-~IENT BOARD

                              By Order of Second Division


Attest: Acting Executive Secretary
 National Railroad Adjustment Board

 c.,o...._
 ..,~-Kooemarie Brasch - Administrative Assistant

 Dated a t Chicago, Illinois, this 30th day of June, 1982.