OPINION OF BOARD: The Claimant in this case was regularly assigned to the Virginia Block and Interlocking Station, Washington, D. C., with a tour of duty from 3:30 P. M. to 11:30 P. M. On February 3, 1966, he was orally notified that he was being held out of service for "failure to comply with instructions given to you by the Division Operator at 5:00 P. M., February 2, 1966, to report for work on that date at Virginia Block and Interlocking Station." On February 5, 1966, Claimant was notified by Certified Mail to attend a trial on the following charge:
The trial or hearing was held on February 9, 1966, at which Claimant was present and represented. On February 21, 1966, he was notified officially that he was dismissed from the service.
The Organization, on behalf of Claimant, contends that the Carrier, by conducting the trial on February 9, only four days after he was officially notified in writing of the trial, stands in violation of Rule 6-C-1(a) of the Agreement. This rule reads as follows:
"RULE 6-C-1.
ADVANCE NOTICE OF TRIAL
Although the written notice was dated February 3, it was not received by the Claimant via Certified Mail until February 5th. This is an indisputable fact. Since only 4 days intervened between the notice and the trial, timely objection was made by the Claimant at the very beginning of the trial, when he was asked by the hearing officer if he was "ready and willing to proceed with the trial", and replied that he was not "ready and willing." He objected to the continuance of the trial on the grounds that the Company had failed to give him proper written notification under the aforecited Rule. The hearing officer noted the objection, and proceeded to take evidence relevant to the charges.
As we view the language of 6-C-1(a), we must conclude that the verbiage is directory in nature, and not mandatory. To be sure, if the Claimant had elaborated on his reasons for not being "ready and willing" to proceed with the trial, by stating that certain witnesses essential to his case were unavailable, or time would not permit him to accumulate additional evidence, or other matters of a substantive, evidentiary nature were presented, we would be inclined to agree with his argument that he was denied due process. However, the record shows that he merely objected on the grounds that 4 and not 5 days had passed since the date of the notice. We are further bolstered in our opinion that the language of the Rule is directory, and not mandatory, by the language used by the parties in Rule 6-C-1(b) and 6-C-1(c) which read in pertinent part as follows:
It is quite apparent that these two paragraphs are mandatory as indicated by the emphasized words. Lacking such language in 6-C-1(a), we can only conclude that it was the intent of the contracting parties to make this paragraph merely directory, and with this as our interpretation, we must accordingly deny Claim No. 2.
From a review of the record, it appears that on February 1, 1966, a day on which a severe snow storm occurred in the Washington, D. C. area, Claimant was able to drive his car through the snow a distance of 25 miles from his home to his place of employment. Upon arrival at the latter location, he was unable to park his car in his customary place provided by the Carrier; he states that he went into the tower, marked off duty, and went home. With snow on the ground the next day, he was called by his supervisor and ordered to report to duty. Claimant inquired about his parking space, and when told the conditions were relatively the same as the preceding day, refused to report to duty. The evidence attesting to this fact is incontrovertible. He did disobey an order to report and hence is guilty as charged. This is unquestionably a major offense notwithstanding the arguments propounded by the Organization and certainly cannot be condoned. To do so would inevitably lead to nothing but chaos. Nevertheless, taking into consideration the factual situation involved, as well as the fact that the Claimant has, from all available evidence, been an exemplary employe with an unblemished record of eleven years' service, we feel that dismissal was too severe a punishment. Loss of pay for these past 2 years is sufficient punishment. We therefore order that Claimant be restored to duty with seniority and all other rights unimpaired, but with no compensation for time lost.
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