1) The Carrier's action of dismissing Mr. S. L. Penn, without an investigation pursuant to Rule 40, on June 14, 2007 was unjust and in violation of the Agreement [System File C-07-D070-5/1007-0315(MW) BNR].

2) As a consequence of the violation referred to in Part (1) above, Claimant S. L. Penn shall now be reinstated to service with his seniority unimpaired and he shall be compensated for any and all lost time beginning June 14, 2007 and continuing."

The carrier or carriers and the employee or employees involved in

This Division of the Adjustment Board has jurisdiction over the dispute involved herein.

Parties to said dispute were given due notice of hearing thereon.

The Claimant was hired by the Carrier as a Sectionman on April 16, 2007. Subsequently, on June 12, 2007, the Claimant's application for employment was disapproved in writing, pursuant to which the Claimant was terminated on June 14, 2007. The Carrier asserts that it had the right to revoke the Claimant's application within 60 days of his hire. The Organization claims that the Carrier did not act in a timely manner.

According to the Organization, the termination of the Claimant was improper for a number of reasons. First, it claims that the Carrier improperly denied the Claimant a fair and impartial Investigation. According to the Organization, the Claimant had been on the job for 60 days and, therefore, should have received an Investigation. Because he was entitled to an Investigation and did not receive one, the claim must be sustained and the Claimant be made whole for all losses. As noted above, the Claimant began work on April 16 and remained in service until he was removed on June 14, 2007.

Conversely, the Carrier takes the position that because the Claimant worked only 57 days, he was not entitled to an Investigation. The Carrier has the right to revoke any application within the first 60 days of employment. In this case, the Claimant's first day of compensated service was April 17, and he was notified via a letter dated June 12, 2007 that his application was being revoked. This is a period of 57 days. In addition, the Claimant did not provide compensated service on June 14, 2007. However, even assuming, arguendo, that the Claimant had worked 60 days, the Carrier nonetheless contends that it still had the right to revoke his application based on Board precedent. Therefore, the Carrier asks that the claim be denied in its entirety.

Rule 3A provides as follows:

"An applicant for employment will be required to fill out and execute the Company's application forms and pass required physical

The Board finds that the Claimant was terminated on the 59th day because his last day of compensated service was on June 13. However, the Board further finds that even if the Claimant had been terminated on the 60th day, i.e., June 14, the Carrier is nonetheless allowed to revoke an application for employment if that determination is made on the 60th day, which is still part of the probationary period. As the Board held in Second Division Award 8825, another disapproval of employment application case, ". . . it is proper for the Carrier to remove a probationary employee from service on the last day of the probationary period." Thus, under either scenario discussed above, it is clear that the Carrier did disapprove the Claimant's application for employment in a timely manner, pursuant to Rule 3A.

We remind the parties that the Organization has the burden of proof in a Rules case. After a thorough review of the record, we cannot find that the Organization met its burden of proof. Consequently, we have determined that the Carrier properly revoked the Claimant's application for employment prior to the conclusion of the probationary period. As noted above, Board precedent dictates that the Carrier is allowed to revoke an application for employment on the final day of the probationary period.

AWARD