By letter of November 5, 1991, Claimant was directed to appear for an Investigation concerning the following charge:
Following an Investigation held on November 29, 1991, Claimant was notified that he had been found guilty of the charges and was assessed the discipline of disqualification as a Train Dispatcher. The discipline was appealed in the usual manner, including conference on the property, after which it remained unresqlved.
At the outset, the organization raised a procedural objection regarding the timeliness of the Notice of Hearing. The notice dated November 5, was mailed on November 6, (Wednesday), and was not received by the General Chairman until November 12, 1991, the originally scheduled date for the Hearing. Moreover, it was apparently not received by Claimant until November 16, four days after the original Hearing date. In Third Division Award 30248 we noted that the clear language of Rule 19 (b) of the Agreement between the Parties requires Carrier to give Claimant five days' notice prior to the scheduled Hearing. In light of the fact that carrier was aware of Claimant's alleged misconduct several days prior to November 5, 1991, there can be no excuse for Carrier's continued practice of issuing Hearing notices "under the wire." In this particular case, it was not impossible for Claimant to receive a letter mailed on November 6, 1991 by November 7, 1991, but in light of the state of mail service in metropolitan areas, it was an assumption bespeaking outrageous optimism on Carrier's part. It is apparent from the remainder of the record that Claimant had ample opportunity to formulate an adequate defense to the charges against him. Accordingly, while not in any way condoning what appears to be a pattern of lassitude by Carrier in this regard, we do not find that in this instance the delay constitutes a fatal procedural flaw.
With respect to the merits of the case, Carrier failed to carry its burden of persuasion. It is unrefuted on the record before the Board that Train 640 was never known to travel on the Track No. 2 -- the track under restriction. Rather, testimony at the Hearing established that Train 640 always travels on Track No. 1. Claimant testified without contradiction that he checked with the Operator at Shore to confirm that Train 640 was running on Track No. 1. Claimant also stated that, he "already knew [640] was Form 1 Award No. 30720
going out 1 at Holmes. There was no point in telling [the engineer on 640] that there was a 30 m.p.h. restriction on a track he wasn't operating on." Finally, it is uncontroverted on the record that Claimant did, in fact, notify all trains within his responsibility coming on Track No. 2 of the 30 m.p.h. restriction. In light of the foregoing the Board must conclude that Carrier failed to show the Claimant guilty of negligence. Accordingly, the present claim is sustained, with the exception of the request for payment for attending the Investigation. There is no Rule support for granting such a request.
This Board, after consideration of the dispute identified above, hereby orders that an award favorable to the Claimant(s) be made. The Carrier is ordered to make the Award effective on or before 30 days following the postmark date the Award is transmitted to the parties.