The Third Division consisted of the regular members and in addition Referee Barry E. Simon when award was rendered.
The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds that:
The carrier or carriers and the employee or employees involved in this dispute are respectively carrier and employee within the meaning of the Railway Labor Act, as approved June 21, 1934.
This Division of the AdjustmentBoard has jurisdiction over the dispute involved herein.
The Claimant was scheduled to return to work on March 31,1998, following a suspension. Sometime prior to 7:00 A.M. that day, the Claimant left a voice mail message for his supervisor advising that he would not be at work because his back was hurting. The message concluded by saying he would advise the supervisor later as to what was going on. Thereafter, the Claimant never returned to work, nor did he obtain a leave of absence. Accordingly, the Carrier directed him to attend a formal Investigation in connection with his absence from work between March 31 and April 10,1998. The Notice of Investigation was first sent via certified mail to the Claimant's last known address, but was returned, indicating he had moved without leaving a forwarding address. A copy of the notice was sent to another address the Carrier believed he might have moved to. On the scheduled date of the Investigation, the Claimant did not appear, nor did he request a postponement. Although the Organization requested a postponement at the start of the Investigation, there is no indication it had any contact with the Claimant during this time, either. The request was denied.
The Organization objects to the Carrier holding the Investigation in the Claimant's absence. There is a long history of Awards of this Board holding that an Investigation conducted in absentia is not violative of an employee's rights under the Agreement. The Carrier's burden is to send a proper notice to the employee's last known address. It is not required to guarantee delivery of that notice. Placing the notice in the U. S. Mail satisfies the Carrier's obligation. It is also not necessary to try to locate alternative addresses for the employee, although the Carrier, in this case, took that extra step. Just as the employee has the right to attend the Investigation, he also has the right not to attend. The Board concludes the Carrier afforded the Claimant the first right, but he chose to exercise the second.
There is no dispute as to the proof in this case. The Claimant was charged with unauthorized absence, and the evidence shows conclusively that he neither came to work nor requested permission to be absent. The only question remaining before the Board is whether the disciplinary action taken by the Carrier was commensurate with the Claimant's offense, with consideration of his prior disciplinary record. That record shows the Claimant had received two suspensions shortly before the absence giving rise to this case. Both of those suspensions were for absenting himself without authority. In each case, he was also placed on probation for one year. The conditions of those probations were that any future offenses would result in his dismissal. We note that in 1995, the Claimant had served a five month suspension for an offense of Form 1 Award No. 35373
the same nature. The Claimant certainly was on notice that his failure to report for duty would subject him to dismissal. It appears in this case, that the Claimant simply abandoned his job. Under these circumstances, we do not find the discipline imposed to be excessive.
This Board, after consideration of the dispute identified above, hereby orders that an Award favorable to the Claimant(s) not be made.