Between June 1982 and December 1990, Claimant was arrested and found guilty on five separate occasions of driving under the influence (DUI) of alcohol. On the first four of these occasions he was allowed to participate in a work release program with the Carrier. On the fifth occasion, Carrier denied his request for work release and gave him a written warning that a future conviction for DUI would result in termination.
During February/March 1995 Claimant was arrested, tried and convicted of DUI and sentenced to one year in the Adams County Jail and, after that year was served, to six months in the Denver Jail. Carrier denied Claimant's request to participate in a work release program. Claimant began his incarceration on April 1, 1995.
After Claimant missed five days of work, Carrier sent him a letter charging him with being in violation of Rules C, D and L and informing him of a Hearing on those charges. That Hearing was held on April 13, 1995 with the Claimant in absentia. Claimant's representative also failed to attend this Investigation. Carrier terminated Claimant on April 18, 1995.
The Organization contends that there are two procedural defects of sufficient severity as to require that this claim be sustained. The Organization was not given notice of the Hearing and Carrier failed to deny the claim and appeal in a timely manner. In addition the Organization contended that Claimant failed to receive a fair and impartial Investigation and that Carrier failed to prove the charges levied against Claimant.
This Board finds that Carrier sent the Notice of Hearing to the Claimant. thereby fulfilling its notification requirement. Claimant had time to secure the presence of a representative of his choice. Ire did not do so. Carrier is not required to delay scheduling an Investigation until Claimant was released from jail. It was not improper to hold the Investigation in absentia.
This Board finds Carrier failed to deny claim in a timely manner. The Organization's claim was filed on May 18, 1995. The Carrier admitted that it failed to deny this claim until July 31. 1995, beyond the 60 day response time required in Rule 19. Therefore the Board finds that the Claimant should be returned to duty within ten Form 1 Award No. 32546
days after his release from jail with seniority and other rights unimpaired. Jail time is to be considered leave without pay.
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.