PARTIES TO DISPUTE: Brotherhood of Maintenance of Way Employes and


      Chicago & North Western Transportation Company -


        STATEMENT OF CLAIM:

    Claim of the System Committee of the Brotherhood that:


        (T)- The sixty (60) day suspension assessed D. L. Gates for alleged violation of Rule 14 was without just and sufficient cause. (Organization File 9D-2451; Carrier File D-11-T7-399).


        (2) The hearing in this instance was not held in accordance with Rule 19(a) nor was D. L. Gates allowed due process as afforded in that rule.


        (3). Because of either Part 1 or 2 hereof, Claimant D. L. Gates shall be allowed the remedy prescribed in Rule 19(d).


OPINION OF THE BOARD:
 This Board, upon the whole record and all of the evidence, finds and holds that the Employe and Carrier involved in this dispute are respectively Employe and Carrier within the meaning of the Railway Labor Act, as amended, and that the Board has jurisdiction over the dispute involved herein.
 The following notice was hand delivered to the Claimant on September 22, 1981:
    "You are hereby directed to appear for a formal investigation as

    indicated below:

            _._ . _. . ' P LB No. 2960

                                    Award No. 74

                                    Case No. 72


        DATE: Friday, October 2, 1981

        TIME: TT:00 A.M.

        PLACE: Office of the Assistant Division Manager -

        Engineering, 500 W. Madison Street, Room 41T CPT

        Chicago, IL 60606

        CHARGE: Your responsibility in connection with your viola

        tion of Rule No. 14 on Friday, September 18, 1981

        and Monday, September 21, 1981.


    "You may be accompanied by one or more, persons and/or representatives of your own choosing subject to the provisions of applicable rules and agreements. You may, if you so desire, produce witnesses in your own behalf without expense to the Transportation

    Company.",


Rule 14 states:

    "Employes must report for duty at the designated time and place. They must be alert, attentive and devote themselves exclusively to the Company's service while on duty. They must not absent themselves from duty, exchange duties with or substitute others in their place, without proper authority."


    The Organization argues that the discipline cannot stand because


the time limits for holding a hearing under Rule 19(a) were violated.

    Upon review of the record, we must agree with the Organization:


Rule 19(a) states:

    "(a) Any employe who has been in service in excess of sixty (60) calendar days will not be disciplined nor dismissed without a fair and impartial hearing. He may, however, be held out of service pending such hearing. At the hearing, the employe may be assisted by an employe of his choice or a duly accredited representative or representatives of the Brotherhood. The hearing will be held within ten (10) calendar days of the alleged offense or within ten (10) calendar days of the date information concerning the alleged offense has reached the Assistant Division ManagerEngineering. Decision will be rendered within ten-(10T calendar days after completion of hearing. Prior to the hearing the employe will be notified in writing of the precise charge against him, with copy to the General Chairman, after. which he will be allowed reasonable time for the purpose of having witnesses and representative of his choice present at the hearing. Two working days will, under ordinary circumstances, be considered reasonable time. The investigation will be postponed for good and sufficient reasons on request of either party."


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                                    PLB No. 2960 Award No. 74 Case No. 72.


It is apparent from the record that the dates of the two offenses under investigation were September 18 and September 21. The hearing was originally scheduled for October 2, 1981 which is not within 10 days of either occurrence. The Board also notes that the Organization made a timely objection at the hearing regarding the fact the original hearing date was-outside the 10-day limit. Additionally, we are unimpressed by the justification offered by the Carrier at the hearing. It was stated by the hearing officer:
 "The reason it was set up that way, it was another investigation scheduled for October 2, when just previous to this, when the clerk typed this up to make convenient for all concerned, she made it at the same time." This is insufficient justification in the mind of the Board far failure to schedule the investigation as prescribed by the Rules. It has been stated before that when a hearing is scheduled outside the time limits, a prima facie violation of Rule 19(a) is established. The burden then shifts to the Carrier to show extenuating circumstances. In this case, the record does not establish the Carrier fulfilled their burden in this respect. In view of the foregoing, the Claim is sustained without regard to the merits. The Carrier is ordered to compensate the Claimant in accordance with Rule 19(a).

 AWARD
    The Claim is sustained.


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PLB No. 2960 Award No. 74 Case No. 72

                Gil Vernon, airman


                                r


      arper, mp oye Member V Crawford, Carrier mem er


Gated:

              ~r