Paul C. Carter, Referee


Brotherhood of Railway, Airline and Steamship Clerks, Freight Handlers, Express and Station Employes PARTIES TO DISPUTE
                Termiml Railroad Association of St. Louis


STATMENT OF CLAIM: Claim of the System Committee of the Brotherhood
                (cr,-9361) that:


1. Carrier violated the AEreemeat b etweeea the parties when it dismissed Mr. C. J. Pickett from its service by letter dated December 4, 1979, without affording him a "fair and imp3x'tial investigation." (Carrier's File - C).

 2. Carrier also violated the Agreement between the parties when it failed to hold the investigation within the time limits set forth is Rule 24.

 3. Carrier further violated the Agreement when it failed and refused to grant a temporary postponem in absentia, without giving any consideration to the mitigating circumstances concerning Mr. Pickett's absence.

 4. Carrier's actions were arbitrary, unjust., unreasonable and completely uncalled for.

 5. Carrier shall now be required to compensate Mr. C. J. Pickett for all wage looses sustained.. beginning December 4, 1979, and continuing each workday, five days per we,·k until returned to service; sad shall also be required to expunge the investigation transcript from his personal record file*

 OPINION OF BOARD: The claimant was employed by the Carrier as Leverman-
              operator with a Company seniority date of February 23, 1963.


Claimant was displaced from his regular assignment on October 7, 1979 sad exercised his seniority to another position designated as swing position No. 6 on October 12, 1979, which required that he be qualified as LevermgaOperator at SH Interlocking Tower. On October 12, 1979, he worked at SH Tower on second shift, breaking is since he had not previously qualified on the position. After working on 1979, he laid off and did not work thereafter. The Carrier states that on November 1, 1979, he called the train director at ID Tower, who maintains the Interlocking Department assignment board., okayed himself for duty, express he would have to break in on the second ship; November 2, 1979, but he failed to
 ..w. A-ward Number 23503 Page 2
 Do:ket Nmmber Q.-23a24

 repast far that assignment. As he failed to protect the wigammt on the data in question affil did not communicate with the Carrier regarding his raasoaa far failure to do so, Carrier's Tisinrst.s notified the claimant on Rovember ib, 1979:

        "An investigation will be held is the Conference Rose, second floor, Brooklyn Shops, Iavejoyr Illinois at 1:3o Pox,, Wednesday, November 28, 1979, to develop the fleets, discover the cause and determine reapoasibility, if ax~y, in connection with your slisgs as the second shift at Nmvmber 2, 1979.


            "Arrange to attend tl is investigation. Yea

        era entitled to repreaenG tioa and witnesses' it you so desire."


The notice was sent certified mail - return reosipt requested# and the Carrier received receipt ahowinf: delivery of the letter. The claimant failed to appear at the inveatigaticn, which was evsduabed is his absence# and on December 4, 19'(9, claimant wsa notified of his dismissal fraia service.

 $ the appeal on the property sad is its subalsslna to this Board., the Organisation contends that Carrier violated Palo 21s, which reads in part:

        "An employee shall not be suspended or dUvmUwe4 from service without first being given a fair and 1.olortial investigation* The employee may, harever, be bald frog service pending an investigation ii inoubaedizt theft, violation of Rule (g) or an otfP'lmot of Sawa Wr;ouaneas is involved. Such investigation shall be laid within ten (lo) days fray dabs charges are preftm ancegt the parties may agree to a reasonable postponsinaKti sot exceeding thirty days..."


        The Carrier contends that the tan-day proalaiwa sslg' apgliaas is the

event the employs has been suspended or dismissed frog aserisa. We do sot
 consider too language of Rule 24, quoted show, to be to sunk inter
 pretation, The rule is clear is providing that the iasasti41sfid.ea will be hold
 within ten days from the date charges are pawtftved, sscosgt ft" the parties
 may agree to a reasonable postponement not exceeding thrARya. The Carrier
 has not submitted any evidence in support of trite pnsatyae thRt it alleges exists.
 At air rates where a rule is clear and unambiguous, a~ prV In the agree
 ment may insist upon its literal application at any t1z% a1bvtthattadiag any
 contrary practice. We have carefully reviewed the traasee9jit a! 1$r tavesti
 gation and we snot determine from the lengthy statement sf the Local Chairman
 that he was specifically objecting to the timnliaeos at the iaweatl.gatinsw It
 is well settled that ally objection to the timeliness of an iavssti.ipatioa mast
 be raised during the course of the investigations otherwise such objection is
 considered waived. We consider such to be the case here.
                  Award Number 2350 Page 3

                  Docket Number CL-234


There is evidence in the investigation that claimant had a conversation with the Assistant Superintendent about accepting some discipline without an investigat on that proposition. Neither did he make a clear request on the Organization or on the Carrier for p all the circumstances we cannot find. claimant blameless for not attending the investigation, even though he may have been on his honeymoon.

 )cased on all the circumstances in the case, the Board finds that permaTient dismissal was ex,:essive and that the best solution is to award that claimant be restored to service with seniority unimpaired, but without any compensation fur time lost while out of service.

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


        That the parties waived oral hearing;


That the Carrier and the Employee involved in this dispute are respectively Carrier and Employee within the mining 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 permanent dismissal was excessive.


                        A W A R D


        claim sustained is accordance with the Opinion.


                              NATIONAL RAILROAD A1ITLSTNIENT BOARD

                              By Order of Third Division


ATTEST:
      Executive Secretary


Dated at Chicago, Illinois, this 29th day of January 1982·