PARTIES ) BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES
 TO ) VS.
 DISPUTE ) JOINT TEXAS DIVISION OF CHICAGO, ROCK ISLAND AND
 PACIFIC RAILROAD COMPANY AND FORT WORTH AND DENVER
 RAILWAY COMPANY
 STATEMENT 1. That the Carrier violated the Agreement when as
 OF CLAIM: a result of an investigation conducted September
 10, 1979, they dismissed Section Laborer R. C.
 Cotton, said dismissal being arbitrary, capricious
 and without according Claimant due process.
 2. That the Carrier shall reinstate Claimant R. C.
 Cotton to his former position of Section Laborer
 with seniority, vacation and other rights unim
 paired and in addition shall compensate hi.;. -or
 all wage loss suffered account the Carrier's
 improper action.

 FINDINGS : By reason of tire Memorandum of Agreement signed Novem
 ber 16, 1979, and upon the whole record and all the
 evidence, the Board finds that the parties herein are employe and
 carrier within the meaning of the Railway Labor Act, as amended, and
 that it has jurisdiction.

 Section Laborer R. C. Cotton was dismissed from service of tine Carrier on September 14, 1979 "for violation of Rule '061 and 667 of Burlington Northern Safety Rules in connection with faillar=_ to comply with instructions from proper authority and insubordinate conduct at Bardwell, Texas on August 28, 1979 as disclosed in investigation afforded him" on September 10, 1979.
                                      AWARD NO. 1 (page 2) CASE NO. i


The letter of the Carrier advising Claimant of the investigation of September 10, 1979, stated in part:

                "Arrange for representative and/or witnesses if desired, in accordance with governing provisions of prevailing Schedule Rules."


Schedule Rule 26, Hearing (a), provides, in part: " ..and may be represented by his duly authorized representative of the Organization party to this Agreement."

 At the investigation of September 10, 1979, the Carrier's Investigating Officer asked Claimant: "Do you have a representative?" Claimant answered: "I have one but he couldn't be here today."

 The Carrier's Investigating officer proceeded to hold the investigation without protest or objection by Claimant.

 At the conclusion of the investigation, the transcript records (p.8)

                "Q. Mr. Cotton, has this investigation been conducted in a fair and impartial manner under the rules of your agreement?

              A. No.

                Q. Have you had full opportunity to question the witnesses at this investigation?

              A. Yes.

                Q. In what way do you consider the investigation as not being fair and impartial under the rules of your agreement?

              A. Well, I thought you had to have a representative.

                Q. Did the notice of investigation state that you should arrange for a representative and/or witnesses as desired in accordance with the governing provisions of prevailing schedule rules?

              A. Yes, but one quit and the other one is sick."


The evidence of record is clear, showing that the Carries afforded Claimant notice and opportunity to arrange for a representative as desired in accordance with the governing provisions of prevail ing schedule rules. Further, it is clear that Claimant failed to object, protest, or ask for continuance when he had no representative. In such circumstances, it would be consistent with orderly procedure in the conduct of an investigation to deem the Claimant's conduct as a waiver of his right of representation and to hold that subsequent
 ,~ ;?5 3 s
 AWARD NO. 1 (page I)
 CASE NO. 1

 objection on grounds of denial of due process comes too late.

 The right of representation, of course, is a fundamental right of due process. Waiver of such a basic right, especially in the light of the limited background of the Section Laborer's education, should be completely voluntary, explicit, and plain beyond doubt. The Referee is fully persuaded by the quoted language at the end of the hearing (p. 8 of transcript) that Claimant did not give consent to having the investigation being held without representation.

 Investigations are under the control of the Carrier and are conducted by it. The Carrier's rights can be expected to be safeguarded at the investigation. The employee's rights must be protected likewise. The holding of the investigation is not for the purpose of proving the correctness of the charges but for the purpose of developing all the facts material to the charges, both against and favorable to the employee. This does not call for a knowledge of court procedure. It does call for the exercise of fair play.

 In the peculiar circumstances of this particular case, when it was made evident to the Carrier's Investigating officer that Claimant was not giving his voluntary consent to the investigation without having representation, the Investigating officer should have further clarified any objection by Claimant and should have suggested, if so desired by Claimant, a continuance of the investigation.

 In the circumstances of this particular case, neither Claimant nor Carrier's Investigating Officer acted blamelessly.

 1. The Carrier is in violation of the Agreement.

 2. The Carrier shall reinstate Claimant R. C. Cotton to his former position of Section Laborer with seniority, vacation and other rights unimpaired. Claim for all wage loss is denied.

            V

JOSEPH L ZAR, CHAIRMAN AND NEUTRAL MEMBER

 S. E. FLEMING, EMPLOYE _41BER

 DA' °_D : V C~_ - 16 /

 B . J . MASCN, CARRIER MEMBER