THIRD DIVISION
(Supplemental)
STATEMENT OF CLAIM: Claim of the General Committee off the Brotherhood of Railroad Signalmen on the Illinois Central Railroad Company that:
OPINION OF BOARD: The Carrier alleges in this case, that Signalman B. J. Pate failed to operate Motor Car No. 8438, in a safe manner on November 14, 1961. It charges that such failure resulted in the demolition of said motor car when it was struck by Extra 9308 South, at Mile Post 95 just south of Abbott, Illinois. As a result of an investigation into such allegations, the Carrier suspended Pate from the service of the company, for a period of sixty (60) days.
The Organization urges that the Carrier committed four fundamental errors in handling this case.
The first assignment of error involves the notice of the investigation. It is argued that the notice, which stated that a formal investigation would be held, ` . to determine the facts and your responsibility, if any, in connection with Motor Car #8438, operated by you and occupied by Assistant Signalman M. D. Miller, being struck by Extra 9308 South, at Mile Post 95 just south of Abbott, Illinois at approximately 3:20 P. M., November 14, 1961"; was not sufficient to charge Claimant with any inraction of the
agreement rules. The basic purpose of the notice is to give the employe an opportunity to prepare himself to defend against the accusations of the Carrier. We are of the opinion that the notice involved in this case was sufficient to advise the Claimant of the nature of the investigation. We doubt, that having received this notice, the Claimant was surprised by the conduct of the investigation which followed. We therefore hold that such notice was not a violation of due process and therefore not an error as alleged.
The Carrier suspended Claimant pending this investigation. The Organization argues that this is a violation of Rule 701(a), which reads as follows:
Therefore, the second error presented centers around the language, "proper cases". We are of the opinion that this language is discretionary in nature, and that such discretion is within .the province of the Carrier. This implies of course, that where discretion is involved, abuse of discretion may sometimes exist. However, since the investigation was timely held, and since the record seems to support .the charges heard therein, we find no abuse of discretion do this instance, and hold that the suspension was proper.
The third error assigned is that the Carrier failed to grant Pate hearings subsequent to, his suspension, in violation of his rights under the Signalmens' Agreement. Rule 701 provides the machinery for hearings subsequent to the disciplinary action. This record is void of any declination by the Carrier to comply with any properly presented request for a hearing under said rule.
The final error presented is that Signalman Pate was not responsible for the accident involved in this dispute. We are of the opinion that Carrier has established Claimant's responsibility for the accident, and there is nothing in the record to substantiate Pate's defense to the allegations.
Since the Claimant has failed to assign and prove fundamental error in the handling of this disciplinary action, we shall leave the same undistrubed.
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