(Brotherhood of Railway, Airline and ( Steamship Clerks, Freight Handlers, ( Express and Station Employes PARTIES TO DISPUTE (Minnesota Transfer Railway Company

(1) The Carrier violated the provisions of the July 1. 1;58 R,i-as A?reenent by discharging tin. T. E Luffy, Clerk, St. Fcal , LL^nasota from the servica of the
(2) The Carrier shall now be required to reinstate 3.:r. T. E. Duffy to the service of the Cc=any effective November 21, 1975, ce= 7t`njated for all loss of comvensation, continuance of insurance coverage, .Sick; leave and vacation allo-oance.

 OPL170:1 OF BOARD: Qn November 20, 1975 Clai7ant was instructed to
 report for an investigation on November 26, 1975,
 concerning asserted unauthorized absence from duty on November 19 and
 20, 1975.

 On November 21, 1975 the Clai=ant's position (No. 65) was bulletined effective December 1, 1975 with the notation:

When the Carrier's Special Agent delivered the notice of investigation (on November 24, 1975), according to the Claimant, the Agent was advised that the Enploye had a doctor's appointment scheduled on the next day, and on the 25th, Claimant's mother allegedly notified the Carrier that the Employe had been hospitalized. Nonetheless, the Carrier conducted the investigation without the Claimant.

 On November 28, Carrier advised the Clai_ant that he had failed to appear at the investigation., did not request a postponement, and that "his services ...ar


The Organization urges that the records confirm that the Claimant was hospitalized from 10:30 A.M. on November 25, 1975 until December 12, 1975, and the fact that Carrier did not attempt to verif~f the information given by the Claimant's mother is indicative of the failure to conduct a proper hearing - which is farther emphasized by Carrier's posting of a bulletin ox a "permanent vacancy" prior to the investigation hearing.

 At the investigation, Claimant's Supervisor testified that Claimant had advised that he would report for duty on both November 19 and ltorember 20, yet he failed to do so. Farther (and in accordance with the notice of investigation) the Employe's'prior record was considered. Finally, the Supervisor stated that in his "personal opinion" (based upon certain stated conclusions) the Claimant was an "incurable alcoholic."

 Daring ;.he appellate procedure on the property, the Vice ?resident and General Manager denied that the Special Agent was advised, on November 24, 1975, that the Claimant had a medical appointment on the following day, but he concedes that a telephone call was received on November 25 from Claimant's mother, advising that Claimant was "going to the hospital." However, he points out that "no mention was made of his being confined there and no request was :,ado for a postponement of the investigation."

 Although we are unable to find any such testimony in the transcript of investigation conducted on November 26, 1975 (even considering the gratuitous personal opinion),the same Carrier Official stated, in the letter cited above, that the Claimant:

            "...failed to appear for work on two consecutive days because he was drunk and he had been drinking before the events leading to this investigation.".


Although the Organization pointed out, on the property, that there was no evidence of record to substantiate the above citation, Carrier failed to retract it.

 The parties have argued the basic factors which they feel are appropriate concerning the conducting of a hearing without the Employe being present. The fact that a postpone~nt was not sought may very well be explained by the Claimant's hospitalization. In any event, when the Claimant did not report at the designated time, the knowledge that he was hospitalized might have prompted some inquiry by the Carrier as to his whereabouts in a matter of this magnitude rather than the legalistic
                    Award Number 22203 Page 3

                  Docket :umber CL-22107


approach which was followed here. But, it is urneccsz wry to rely sol~y upon that ascect of the case.

 LIn addition to the decision to proceed with the investib Lion without asking inquirf as to Claimant's whereabouts, Carrier demonstrated a pre judg-ment when it posted a "permanent" vacancy prior to the investigation, (2) accepted - and ass=edly relied upon - a "personal opinion" concerning a highly complex medical problem from an individual who is not an e_rert in that field, andr(3) made unsubstantiated "factual" assertions concerning alleged "drsnkenness," when the Claimrnt was cited for other infractions.?

 it rmy very well be that `..his Cyai--int suffers from a severe problem -,which Pas a direct bearing ;rron tile employment reiaticnship. But, even if that is the case, it is not a. ba&Is for ig.^.ori^ the requirerrpnt flat ^e to afforded a fair and i=_3rt=al 1'learing and handling of t::e dispute. Carrieris action cc^s=dered in its entirety deprived him of that =igla.

 A portion of t'.^.= claim seeks "continucrce of insurance coverage." Ar:ards of this Board have determined "no orc_oer basis" _r=such a claim. Lee Award 20,cq
        FuTD1:;GS: The Third Division of the Adjustment ?card, upon the whole record and a71 the evidence, finds and holds:


        That the rrarties waived oral hearing;


That the Carrier and the .T^uployes invcl'Jed in this dispu'Ge are respectively Carrier and EMDloyes within the :leaning of the Rail5:.'ay Labor Act, as approved June 21, 1934.

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

        That the Agie=met -:as ~.ric:.aic_3.

                  Award Number 22203 Page 4

                  Docket :Ijmber CL-22107

                  A ?d P- R D


Claim sustained except for that portion dealing with "insurance coverage."

                        2L11TI02dAL RAILRCAD ADJUST :4EI4-T BOARD

                        By Order of Third Division


ATTEST: ~~
Dated at Chicago, Illinois, this 13th day of October 197$.

 G

 0C T 2 7 9978 i.

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