PARTIES TO DISPUTE:



STATEMENT OF CLAIM: Claim of the General Committee of the Brotherhood of Railroad Signalmen on the Illinois Central Railroad Company:






OPINION OF BOARD: There does not seem to be any substantial difference between the parties as to the facts of the case. Signal Foreman Denton absented himself from his duties without authority on September 5, 6, 7, 8 and 18, 1961. He could not discharge his responsibilities of properly handling the time roll since hew" not on the job. There is a difference as to the reason for the admitted absences: The Carrier claims he was intoxicated on September 5, 1961; the Organization says he was sick.


The Carrier sent Claimant a notice to attend a "* * * formal investigation to be held in the Division Engineer's office, Carbondale, Illinois, at 10 A.M., DST, September 20, 1961, to determine the facts in connection with your absenting yourself from your duties on September 5, 6, 7 and 8, alleged improper handling of timeroll, and alleged use of intoxicants." The Brotherhood contends the notice was defective because it did not state the exact charges against the employe and Rule 701 (a) of the current Agreement requires that an employe be given advance notice in writing of the exact charges against him. The Organization further states that an investigation to develop facts is not the same as an exact charge and a hearing thereon; in the case at bar, after the hearing held pursuant to the defective notice, the Claimant was discharged. The Organization concludes that, based on the above statement of facts, it is



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not necessary to decide the case on the merits because the hearing and the Carrier's decision to discharge Claimant were not in compliance with the Agreement and therefore the proceeding is a nullity.

The Awards are clear in holding that the reason for requiring a notice of hearing is to assure an employe of a clear statement of the subject matter of the hearing so that he can properly prepare his defense. Such requirements also comport with the larger purpose of guaranteeing him a full, fair and impartial hearing. This is an elementary requirement that must be met otherwise an employe might be exposed to a denial of due process of law.







The overwhelming weight of the Awards support the proposition that a notice which reasonably apprises an employe of what set of facts and circumstances is under inquiry so that he will not be suprised and can prepare a defense will assure protection of his substantial rights. The notice which is the subject matter of the present dispute meets all necessary requirements. Award 3270 (Carter) is apposite to the facts in this case:








Also see: the following Awards: 11170, 11327, First Division, 19699, 18803, 17609 and many others too numcrous to require mention.
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Even if the recited purpose of the hearing was to determine "facts", there is nothing in the Agreement prohibiting the investigation official from evaluating those facts and taking appropriate action thereon.


FINDINGS: The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds and holds:




That the Carrier and the Employes involved in this dispute are respectively Carrier and Employes within the meaning of the Railway Labor Act, as approved June 21, 1934;


That this Division of the Adjustment Board has jurisdiction over the dispute involved herein; and













Dated at Chicago, Illinois, this 18th day of October. 1963.



In this Award the majority instead of applying the Discipline Rule, Rule 701(a), in light of the facts devoted its effort to bending the clear language of the Rule to fit what has been said in other cases in connection with other rules of other agreements and under other fact situations. For example, the comparable rule in Award 3270, which the majority leans heavily upon, provided that notice to the accused "shall be in writing and contain the specific charge or nature of complaint" (emphasis ours) whereas, the applicable rule in the instant case unequivocally provides that the accused will prior to the investigation be advised "of the exact charge or charges which have been made against him."


Notifying an employe to attend an investigation "* * * to determine the facts in connection with your absenting yourself from your duties without proper authority on September 5, 6, 7 and 8, alleged improper handling of timeroll, and alleged use of intoxicants." certainly does not advise the employe of the exact charge or charges which have been made against him.


Equally erroneous but understandable when considered in light of the reasoning employed by the majority in the remainder of the Award is the conclusion that it was alright for Carrier to set up a fact finding investigation and then dismiss the accused without a hearing on the exact charge or charges which have been made against him.


There is nothing in either the agreement, the record or the Award to justify the majority's upholding of the Carrier's disregard of the clear provision of Rule 701 (a) ; therefore, I dissent.




                        G. Orndorff

                        Labor Member