(Brotherhood of Railway, Airline and Steamship ( Clerks, Freight Handlers, Express and ( Station Employes PARTIES TO DISPUTE: (Norfolk and Western Railway Company

1. The Carrier violated the Master Clerical Agreement effective January 1, 1965, when on September 1 Franken, Jr., Suffolk, Virginia from service of the Carrier following investigation on September 8,








OPINION OF BOARD: On May 29, 1971, Claimant was involved in an alter
 cation which led to his arrest. Subsequently, he
 was found guilty of two counts of murder and three counts of attempted
 murder and was sentenced to a total of ninety (90) years of confinement
 in the State Penitentiary.

 In August of 1972, Claimant was advised by Carrier to report for a formal investigation as a result of unauthorized absence from duty on and after May 24, 1971. After a number of postponements, the investigation was conducted on Septe present. On September 19, 1972, Claimant was dismissed from service.

 The Organization does not contest the basic facts stated above, but states that the Carrier should have granted Claimant an indefinite leave of absence, and requests a reinstatement because Claimant was not present at the investigation.
              Award Number 20294 Page 2

              Docket Number CL-20528


The Board has reviewed the applicable Agreement at length, and we are unable to discover any language which would authorize us to require Carrier to grant an unlimited leave of absence to an employee who is incarcerated in a State Penitentiary after conviction of a number of crimes of violence.

 The Organization's request for reinstatement because Claimant was not present at the investigation stems from the wording of Rule 27 (a):

        "An employee ....will not be disciplined or dismissed without investigation and hearing and will have the right to be present." (underscoring supplied)


In its very vigorous defense of Claimant's rights, the Organization raised timely objection to a objections were renewed at the investigation) and made objection to hearsay testimony at the investi
We are persuaded by the Organization's contentions that, clearly, a Claimant has a due process right to confront and cross examine witnesses - and to present his own evidence and testimony - at a hearing concerning his employment status and livelihood. At the same time we recognize that a Claimant may not defeat Carrier's right to take appropriate disciplinary action, by deliberate action, or by circumstances which are created by his own conduct or misconduct.

 Rule 27(a) contains language which mandates that Claimant has a right to be present at an investigation and hearing. But, under this record, we are unable to conclude that Carrier's action in any manner precluded Claimant's presence Carrier withheld formal investigation until Claimant's guilt was established under the State's crimi he would be subjected to a lengthy period of prison incarceration.

 We have no difficulty in issuing a denial award under this record because Claimant himself, by his own misconduct in perpetrating a number of severe crimes of violence, affected his contractual right to be present at the investigation. There is absolutely no evidence of record to suggest that Carrier was a motiva i

              Award Number 20294 Page 3

              Docket Number CL-20528


At the same time, we note that which appears to be an underlying concern by the Organization that, i be diluted by this Award. Such is not the case. We feel that the mandates of Rule 27(a) are quite si condone any deliberate Carrier action which would deprive a Claimant of his right to be present at his investigation, unless he waives that right, or his deliberate action affirmatively precludes such attendance. We do not mean to suggest that Carrier has urged that the impact of Rule 27(a) be relaxed, but merely point out that each individual case must be viewed upon its own merits.

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


        That the parties waived oral hearing;


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

        That the Agreement was not violated.


                    A W=


        Claim denied.


                        NATIONAL RAILROAD ADJUSTS BOARD

                        Order of Third Division


ATTEST: 1
        Executive Secretary


Dated at Chicago, Illinois, this 14th day of June 1974.

 W