PARTIES TO DISPUTE

STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood that:

 (1) The dismissal of Trackman J. T. Luckey for alleged violation of Rule No. '18' was arbitrary and is violation of the Agreement (System File C-4(13)-JTL/12-39(80-18) H).

 (2) The claimant shall be reinstated with seniority and all other rights unimpaired, his record be cleared of the charge leveled against him and he shall be compensated for all wage loss suffered."

 OPINION OF BOARD: Claimant, while off duty and off Carrier's property, allegedly
 fatally wounded a man on February 17, 1979. Claimant
 continued to protect his assignment, however, until November 9, 1979. On this
 date he obtained permission from the Carrier to be absent fry his assignment to
 appear in court. Subsequently Claimant pled guilty to the charge of voluntary
 manslaughter on November 14, 1979 and he was sentenced in the Superior Court of
 the County of Meckleaberg, North Carolina to six to ten years in prison with
 eligibility for parole in four years. The presiding fudge recommended that
 Claimant be put on work release and that part of his earnings while on work
 release and/or parole be sent to the mother of the man Claimant killed to
 reimburse her (in the amount of $1,203.00) for funeral expenses. A stipulation
 of Claimant's plea of voluntary manslaughter was that he serve a mandatory
 minimum sentence of four (4) months in prison.

 On November 26, 1979 Carrier bulletined the Claimant's position on Section Force 5706 as a permanent position vacancy sad on November 27, 1979 Carrier notified Claimant to attend a formal hearing on December 6, 1979 for the alleged contravention of Rule 18 of the Seaboard Coast Line Railroad Company's Safety Rules for Engineering and Maintenance of Way Employee. Rule 18 reads:

An investigation was held on December 6, 1979 and the Claimant was absent although neither Claimant nor his representative requested a postponement prior to that date. On December 14, 1979 Claimant was informed by the Carrier that he had been found guilty as charged and that he was being dismissed from service.
 Award Number 247.24
 Docket Number NW-24205

 Page 2
that there is sufficient substantial evidence present to warrant the conclusion
 that Claimant was is violation of Rule 18 of Carrier's Safety Rules. As a
 procedural point, Organization argues that Claimant did not receive a fair
 hearing on December 6, 1979 because he was not present at the hearing. Aside
 from the facts, important enough in themselves in the mind of the Board, that
 neither Claimant nor Organization requested a postponement prior to the actual
 time of the hearing itself, nor was'Claimant's representative able to give an
 alternative date for a hearing since it was not really clear how long Claimant
 was to remain in prison (only the minimal amount of time was known), the Board
 finds nothing improper per se, in a case of this type, in holding a hearing
 in absentia. The contravention of Carrier's Rule 18 was based on the fact of
 Claimant s caiviction of a pawl laws which had already occurred
 and which was on record, which the Claimant's personal presence at the hearing
 would not have changed one way or the other.

 The Organization's contention that Claimant's position be ruled as a temporary vacancy rather than a permanent vacancy is also found to be without merit by the Board in this case. Rule 8, Section 1 of the Agreement between the parties makes it clear that positions vacated for more than thirty (30) days can be designated as permanent vacancies: and at the very least, from the record presented to this Board, Claimant was required to be absent from his position for a minimum of four (4) months.

That the parties waived oral hearing;

 That the Carrier and the Employee involved in this dispute are respectively Carrier and Employee 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 not violated.

 A W A R D .1011

 Claim denied.

 Attest: Acting Executive Secretary

 National Railroad Adjustment Hoard

 NATIONAL RAIIROAD Al?d'USTWTT~ ~SOARD
 By Order of Third Division

 Rosemarie Branch - Administrative Assistant

 c:hicatto, Illinois, this 14th day of January 1983·