(Brotherhood of Railroad Signalmen PARTIES TO DISPUTE:

_S'FAMKENT OF CLAM "Chit of the General Committee of the Brotherhood of

 Railroad Signalmen on the Norfolk b Western Railway Company:

 On behalf of Signal Matatainer R. L. Levisj, who was dismissed by notice dated January 18s 1980 for reinstatement to the position of Signal Maintainers SardiuUp Osios with all rights cad benefits restored and with pay for all time lost."

 OPIMZOlf OP HOARD: In this case we have a situation wherein an employs became
 involved is an accident while off duty and driving a company vehicle assigned to his by the Carrier for the performance of his duties as n signal maintainer. The derange to the signal truck vas estimated to approximate $2a000. ?here were no reported property or personal damages to others the track having gone off a state highway into a ditch. The soeldest occurred at about 9:1 transported to a hospital for examination and treatment of minor personal injuries., Claimant was reportedly cited by the State Highway Patrol for driving while under the influence of intoxicants.

 Claimant was thereafter withheld from service and properly notified to appear for a hearing scheduled for 9:00 A.M.., January 4s 1980. Claimant did not appear for the hearing and it was held is absentia. He was notified by letter dated January 18, 1980 that as a result of his responsibility as developed is the formal investigation held on January 4s 1980 that he vas dismissed from all service of the (terrier.

 It is to be noted that at the hearing Carrier's Supervisor Signals sad Communications testified to Claimant having told him on the night o! the accident that he had been drinking; that he had finished working at Cincinnati around 4:00 P.K.; came back to Snrdinisj, where he got something to eat; met assn friends; and.. had three or font beers before starting home. The Supervisor's testimony was cor who stated he had been present with the Supervisor when the Claimant admitted to having been drinking*

 Petitoner on behalf of Claimant has brought this cane to our Boards alleging: (1) The hearing in absentia did mat afford Claimant the "fair and impartial formal iavestigatioa° which is his right under the negotiated Rules Agreement; and (2) The record is fatally flawed because the safe Carrier official made the charges appeared as a witness at the hearings and then assessed the discipline.


In regard to Petitioner's second ;safest as above, suffice it to say that its allegation relative to the record befog slaved account the one official serving is multiple roles vas raised by Petitioner for the first time is their submission to this Board* Under such eireamstnaxs, we have no alternative but to suomari7,y dismiss such ellegstioa from our consideration of the claim.

        Petitioner's other allegation relative to Claimant's right to a fair

hearing does, however, give as reason to peace for delibertion. The right .~o a
 fair hearing is written into the negotiated rules. It is axiomatic that a fair
 hearing presupposes adequate advance notice of n charge as well as the develop.
 meat of all testimony relating to the charge. mere Is no question in this
 case but that Claimat did is fact receive adequate advance notice. The dif
 fienlty is this case tames from the fact that Claimant did not have the oppor
 tunity to present "his side" of the start' at the hearing.

 The hearing retard as it vas developed recognized that there vas nn inclement weather situation present on January 4, 1980 is the Portsmouth, Ohio, area, the location at which the hearing vas held. The hearing officer clearly established this as fa conditions, i.e., snow. He also had the record show the hearing commenced an of 9:45 A.M.; that all preset had been so present since 9:00 A.M.; that one witness did drive from Cincinnati to Portsmouth; and, that there had been no eassannication` with Claimant or request far a postponement of the Investigation.

 The record as developed during flee on-property handling of this ease clearly established, however, that Claimant vas not willfully attempting to avoid the scheduled hearing. In fact, the record reflects the opposite to be tree. Claimant had reportedly been entangled in a weather related traffic tie-up and vas in a position where he could not establish timely contact with the Carrier* He did, however, subsequently contact the Carrier# allegedly at his first opportunity, albeit after the hearing h
While we subscribe to the principle that as employs cannot avoid disciplin by the simple expedient of failing to appear at a scheduled hearing niter Proper notice has bees given (see Award No* 22408 - Referee Fraaden); we find that, is fact, the opposite seems to be true in this instance. Rarer Claimant vac caking as effort to be at the scheduled hearing . Ia this respect, we believe Carrier would have been better advised to haze re-opened the hearing when Claimat did make contact with them and established his reason for not being able to appear an time. The essence and indication of fairness would thereby have been clearly established.

 The above considerations notvithstnadiag, it is our opinion that the hearing record is this particular case contains substantial probative erideace to support the charges as made and nn absence of nay allegation that Claimant's presence would have possibly changed that tact. When this factor is considered against Claimant's right to be present at the scheduled hearing, we are compe7led,~. is this in nee., to find flat Gaszier's action vas not so unjust., unreasonable or arbitrary as to constitute an abase of its discretion to impose discip7.tne. We vial not therefore substitute our judgment fns (terrier's in this case. We would,
                        Award Number 24161 Page 3

                        Docket Number SG-240q0


hoKeverp repent that n fair hearing requires consideration by the fhrrier of reasonable a:cases which are advanced as reasons fns failure to timely appear at a scheduled hearing. There are possible situations over which an individual has no personal control which should be considered in n fair manner,

 FINDIiGS: The Third Division of the Adjustment Hoezdq upon the whole record
        and all the e videaxp finds and holds:


        East the parties waived oral hearing;


That the Carrier sad the Employee involved in this dispute are respectively (terrier and Employes within the meaning of the 'Railway Tabor Acts as approved Jane 21j, 19341

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

        'tent the Agreement vas not violated.


                          A W A R D


        Claim denied.


                            NATIONAL RAMROAD AWU37KENT BOARD

                            By Queer of Third Division


ATTEST,: Acting Executive Secretary
        National Railroad Adjustment Board


By
        Rosemarie Breech - Aft3aistretive Assistant


Dated at Qiicago, Illinois this 15th day a! February 1983.