PUBLIC LAW BOARD
N0. 2710
AWARD
N0. 3
PARTIES ) BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYEES
TO
) VS.
DISPUTE ) THE COLORADO AND SOUTHERN RAILWAY COMPANY
STATEMENT Claim of Mr. David Duran that his dismissal from
OF CLAIM: service was capricious and unjust, and that he
be
reinstated to
his former position with'a11
seniority, vacation and other benefits unimpair
ed. Duran was dismissed
effective September 19,
1979.
OPINION OF THE BOARD
The record in this dispute discloses that Claimant acknowledged receipt of a notice of investigation on August
29, 1979.
Said notice ordered Claimant to attend an investigation on August
31, 1979,
for the purpose of ascertaining the facts and determining his responsibility in connection with his allegedly being absent from his assignment as laborer on the Broomfield Section without proper authority on August
24
and August
27, 1979.
It further
directed Claimant to arrange for representative and/or witnesses
desired. On August
31, 1979,
Claimant appeared at the investiga- -
tion and advised the Hearing Officer that he (Claimant) desired
representation; had
attempted to obtain two
(2)
union officers to
represent him at this investigation; that the two
(2)
union officers he had attempted to represent him were either on vacation or
were out of town; and that he was not ready to proceed. The Hearing Officer took the position that Claimant had received notice of
hearing dated August
28, 1979,
and proceeded with the hearing.
It appears to this Board that although the Rules do not
specify a certain number of days between receiving the notice of
investigation and the holding of an investigation, that the Rule
contemplates a "reasonable time". This Board finds that under the
provisions of Rule 26 of the Agreement, less than three (3) days
actual notice does not constitute a reasonable time to obtain representation and prepare for an investigation, especially where
the consequences can be a dismissal. It is true that Claimant
did not request a postponement, but a postponement should have
been ordered by those Carrier Members conducting the investigation.
Although this Board does not condone the inadequate notice
and denial of the right of representation at the investigation, the
past record of this Claimant conclusively indicates that it would bu
a futile gesture to remand this case to the property for a new hearing. Therefore, this Claim will be denied.
Page 2
AWARD: Claim denied.
Signed at Denver, Colorado on this 10th day of
March 1981.
, < ~ Z' ~ i2
' &Z -
D. M. DAL ,
Carrier Member
G RITTER., airman
r
s,
Employee Member
2710-Awd. 3