(Brotherhood of Railway, Airline and Steamship Clerks, ( Freight Handlers, Express and Station Employes PARTIES TO DISPIMs (Illinois Central Gulf Railroad

1. Company violated the agreement between the Parties when it wrongfully suspended Clerk L. E. B through 31, 1977, following a second investigation held October 20, 1977, without rendering a decisi 1977.

 2. Company shall now be required to compensate Clerk L. E. Barney for 5 days' pay, October 27 through October 31, 1977, and his record shall be cleared of all charges as a result of the second investigation held on October 20, 1977.

 OPINION OF BOARD: Claimant was found negligent, after a formal investigation,
 and was assessed a five-day suspension from work for his
 involvement in a truck accident involving the trucks driven by the claimant and
 a second employe while working as unloaders.

Rule 22 of the Agreement provides, among other provisions, (1) the charge must be made within 30 days of the incident, (2) the investigation must be held within 10 days of the notice of the charge, (3) the decision must be rendered within 10 days of the supplied to a disciplined employe.

 There were two investigations in this matter. Because of the failure of the recording equipment during the first investigation, the Carrier could not provide a transcript with the disciplinary action so no decision was made within the required 10 days.

 Instead, the Carrier attempted to void the first charge and proceedings and reinstituted charges based upon the incident, setting a new investigation date. The second charge was within the required 30 days of the incident and the investigation was set with
                        Docket Number CL-23265 Page 2


subsequent date at the request of the claimant which is not material here.) The discipline was also imposed within the following 10-day period.

 At issue then is whether the Carrier may avoid the requirement of a decision within 10 days by attempting to void the proceedings and reinstitute new charges in a timely manner. The rule does not cover this subject. No attempt was made by the Carrier to secure approval of the claimant or the Organization to this proce
It is generally accepted that the time limits in such procedural rules must be strictly adhered to. However, Third Division Award 22462 approved the rescheduling of a hearing when the recording equipment did not function. Claimant points out that in that instance the claimant waived any objection to delaying the hearing while in this case the claimant strongly objected to the procedure being followed by the Carrier.

 In Third Division Award 22741, the carrier was allowed to terminate an investigation when it was discovered there was an error as to the date of the alleged occurrence. A corrected notice to the claimant was issued and the investigation was schedule approving a second hearing required because of a mechanical failure.

 However, we find it unnecessary to address this issue because under the peculiar circumstances here, we find the second hearing itself to be defective. Although the second proceeding is proposed to be distinct from the first, it must be evaluated in light of the first investigation having been held and completed. We find that there is a substantive difference between the first investigation and the second one. In the first investigation, both drivers were charged and appeared as witnesses. In the second investigation, only the claimant was charged, because the investigating officer had decided, as a result of the first investigation, the other emp that the claimant was at fault or the claimant would not have been charged the second time. We must also conclude that since the investigating officer had already made up his mind, even if we were to allow the second proceeding to substitute for the first must be judged in light of what had gone before. The second investigation was pro forma, merely to reconstruct the testimony upon which the investigating officer had previously based his decision. Under these particular circumstances, it was necessary to reconstruct the testimony as nearly as possible to the original testimony upon which the investigating officer made his decision. For that purpose, the other driver proceedings, essential for the Carrier to produce, not for the claimant to produce.

 Since we find that the second investigation was defective, we must find for the claimant. We limit this decision to the facts in this case and do not intend to establish a precedent with respect to essential witnesses at a hearing or investigation.
                        Award Number 23258

                        Docket Number CL-23265 Page 3


        FINDI19sS; 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 thts 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 15th day of April 1981.