NATIONAL RAILROAD ADJUSTMENT BOARD

Award Number 20734

THIRD DIVISION Docket Number CL-20571

Robert A. Franden, Referee

(Brotherhood of Railway, Airline and Steamship
( Clerks, Freight Handlers, Express and
( Station Employes
PARTIES TO DISPUTE:
(George P. Baker, Richard C. Bond, and Jervis
( Langdon, Jr., Trustees of the Property of
( Penn Central Transportation Company, Debtor

STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood (GL-7454) that:

(a) The Carrier violated the Rules Agreement, effective February 1, 1968, particularly Rule 6-A- days suspension on Clerk Ann D. Herndon, Colehour Yard Office, Chicago, Illinois, Western Region, Chicago Division.

(b) Claimant Ann D. Herndon's record be cleared of the charges brought against her on or about August 3, 1972.

(c) Claimant Ann D. Herndon be compensated for wage loss sustained during the period out of serv
OPINION OF BOARD: We are fully cognizant of Awards of this Board hold
ing that an employe cannot avoid the service of a
Notice of Investigation to frustrate the investigation process in this
industry. Even when an employe is determined to be "hiding out" to avoid
the receipt of an investigation notice, it has been held that the contract
ual provisions of an agreement should be complied with. (Award 20588-Sickles)

In this dispute, however, it is not shown that Claimant avoided the "service" of the Notice and, in fact, it is recognized that she was not served with the Notice and that she was not at the investigation held in her absence. The best that Carrier can proffer is that the Notice of Investigation was received at C sister. But that information arose only after they had completed the investigation in absentia and f only witness, Mr. Bridge, reveals:

"Q. Mr. Bridge, was Miss Herndon notified to attend this investigation by letter sent to her last known address?

A. Yes, and I have a receipt for certified mail dated August 2, 1972, the date it was sent, and also a delivery receipt with her signature dated August 3, 1972."

Award Number 20734 Page 2

Docket Number CL-20571

That statement was inaccurate, as clearly demonstrated by Carrier's own Statement of Facts, wher Herndon" - Claimant's sister.

Not having afforded Claimant ample notice and opportunity to

attend the investigation, and not having demonstrated to our satisfaction
that Claimant intentionally avoided service of the notice of investiga
tion, we hold that it was improper under these circumstances for the Car
rier to proceed with the investigation and assess discipline.

The claim will be sustained.

FINDINGS: 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 21, 1934;

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

That the Agreement was violated.

A W A R D

Claim sustained.

NATIONAL RAILROAD ADJUSTMENT BOARD

By Order of Third Division

ATTEST: Executive Secretary

Dated at Chicago, Illinois, this 30th day of May 1975.