C:\MYDOCU~1\SCHEDU~2\3-26769.htm

Form I NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 26769 THIRD DIVISION Docket No. MW-27116 88-3-86-3-171 The Third Division consisted of the regular members and in addition Referee Elmer F. Thies when award was rendered. (Brotherhood of Maintenance of Way Employes PARTIES TO DISPUTE: (Houston Belt 6 Terminal Railway Company

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

(1) The fifteen (15) days of suspension imposed upon Section Laborer J. Young for alleged failure to protect his assignment on January 3, 1985 was arbitrary, capricious, unwarranted and without just and sufficient cause. (2) The claimant's record shall be cleared of the charges leveled against him and he shall be compensated for all wage loss suffered." FINDINGS: The Third Division of the Adjustment Board upon the whole record and all the evidence, finds that: The carrier or carriers and the employe or employees involved in this dispute are respectively carrier and employes within the meaning of the Railway Labor Act as approved June 21, 1934. This Division of the Adjustment Board has jurisdiction over the dispute involved herein.

Parties to said dispute waived right of appearance at hearing thereon.

The Claimant had been employed by the Carrier for a period of seven years and was assigned to a position of Section Laborer. He was absent from duty on January 3, 1985. He telephoned his headquarters and spoke to the Superintendent, indicating he could not get his car started but as soon as he did, he would come on in. Subsequently, the Carrier held a formal Investigation on January 25, 1985,

...responsibility, if any, in connection with the report that you allegedly failed to protect your assignment on January 3, 1985, in violation of Maintenance of Way Bulletin No. 25."

Following the Investigation, the Claimant was assessed a fifteen day actual suspension. The Organization contested this discipline, taking appropriate appeals on the pro properly before us. Form 1 Award No. 26769 Page 2 Docket No. MW-27116 88-3-86-3-171 The Claimant was present at the formal Investigation and he was represented by a Representative proper notice to report for the Investigation. The Claimant responded in the negative and several additional questions were asked and answered regarding notice which the Claimant insisted he had not received. Subsequently, the Claimant's Representative made objection to the notification on the charges. In its handling on the property and its appeal to the Board, the Organization takes the position that the Claimant was not notified as required by Rule 12 (A) of the Parties' Agreement, reading in pertinent part as follows:

"Prior to the hearing the employe will be notified in writing the specific charge against him, after which he will be allowed reasonable time for the purpose of having witnesses and such representatives of his choice present at the hearing."

In Third Division Award 26719 we decided a similar dispute between the same parties in a disputed matter of notification. There is no significant difference in the par Award 26719. The evidence is not sufficient to substantiate the Carrier's position on the issue of notification. Consequently, the discipline imposed upon the Claimant is vacated.

A W A R D

Claim sustained. NATIONAL RAILROAD ADJUSTMENT BOARD By Order of Third Division 7 Attest: ~!. Nancy - Executive Secretary Dated at Chicago, Illinois this 15th day of January 1988.