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Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 9841
SECOND DIVISION Docket No. 9908
2-CMStP&P-EW-'84
The Second Division consisted of the regular members and in
addition Referee Eckehard Muessig when award was rendered.
( International Brotherhood of Electrical Workers
Parties to Dispute: ( System Council Number Eight
( Chicago, Milwaukee, St. Paul and Pacific Railroad Company
Dispute: Claim of Employes:
1. That the Chicago, Milwaukee, St. Paul and Pacific Railroad Company
violated the agreement effective September 1, 1949, in particular Rules 35 and
36, when it unjustly withdrew Electrician T. A. Veres from service as of October
30, 1981 and subsequently unjustly dismissed Mr. Veres on November 19, 1981
for alleged violation of Rule G. Mr. Veres returned to service on January 20,
1982, as ordered by the Carrier.
2. That the Chicago, Milwaukee, St. Paul and Pacific Railroad Company be
ordered to reinstate Electrician Veres with all of his seniority and other rights
unimpaired, compensate him for all lost wages and benefits, and expunge the
record in
connection with
this matter.
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 employes within the meaning o f the Railway Labor
Act as approved June 21, 1934.
This Division of the Adjustment Board has jurisdiction over the dispute
involved herein.
Parties to said dispute waived right of appearance at hearing thereon.
Claimant herein was charged with a Rule G. violation, and after a hearing,
which he did not attend, was dismissed from the Carrier's service.
The Organization argues that the Claimant was not provided proper notice
of the hearing, citing the precise charge, and that the charge of alcohol consumption
is not borne out by the facts as brought out at the hearing.
The Carrier points out that, as a matter of record, on November 2, 1981,
a letter was sent to the Claimant to inform him that a hearing would be held
on November 6, 1981, concerning his alleged violation of Rule G. This letter,
which had been sent to the Claimant's last known address, was returned by the
Postal Service Marked "Moved, Left No Address".
Ultimately, the Claimant was notified o f the hearing on the morning it
was to be held. He then requested a postponement on the ground that he needed
additional time to prepare his defense for the hearing, and because he had
witnesses to call. The Carrier denied this request.
Form 1 Award No. 9841
Page 2 Docket No. 9908
2 -CMStP&P-EGd-' 8 4
There is nothing in the record, except for the Claimant's assertion, that he
had notified the Carrier of his address change. The Carrier's contentions with
respect to its notification process is not an unreasonable one.
With respect to the Claimant's refusal to attend the hearing, it is true
this decision was of his choice. However, the Carrier bears a heavy responsibility
to assure that all of the facts and circumstances relative to the charge under
investigation are fully disclosed at the hearing. Certainly, the Claimant's
specific request for a postponement because he needed time to prepare his defense
and notify a witness who he wanted to appear -- when balanced against the Carrier
responsibility for a fair trial -- was not an unreasonable one. Moreover, the
record shows that the employee had extremely short notice of the trial. The
Carrier's refusal o f a postponement, under the facts and circumstances of record,
was not a reasonable action on its part. °
The Claimant's right to be present at a hearing, whose express purpose was
to determine the facts surrounding the charge levied against him, is so basic to
the due process provision of parties' controlling agreement that we find the
Carriers refusal to delay the hearing, under the facts of record, was unreasonable.
A W A R D
The claim is sustained to the extent that the Claimant shall be restored to
the service, with seniority rights unimpaired, but without any compensation for
time lost while out of service.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest:
~4 ,
Nancy J er - Executive Secretary
Dated at Chicago, Illinois, this 4th day of April, 1984