NATIONAL MEDIATION BOARD
PUBLIC LAW BOARD N0. 4370
BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYEES
and
BURLINGTON NORTHERN RAILROAD COMPANY
AWARD N0. 18
Case No. 18
STATEMENT OF CLAIM
(1) The Carrier violated the-provisions of
the current Agreement when it dismissed Extra Gang
Laborer Mr. I. E. Williams on February 8, 1988, -
without first according Claimant a fair and impartial
hearing. Saidaction being excessiveand in abuse
of discretion. (System file EMWD 88-5-23A).
(2) The Carrier shall. reinstate Claimant_to his
former position with seniority and all-other rights
restored unimpaired with compensation for all wage
loss suffered-and this his record-be cleared of all _
charges.
F I N D I -N G S
Under date of February 8, 1988, the Claimant was sent a
notice Lo attend an investigative hearing at 9 a.m. on February
16, 1988 in-reference-to his__responsibili.ty for his "alleged
absence from duty without proper authority on January 25, 26,
27,-28, and 29, 1988 while assigned to System Steel Gang working
PLB Noi 4370
Award No. 18
Page 2
in Fort Worth, Texas". The Claimant did not appear at the hearing.
The hearing proceeded in the Claimant's absence. As to
the notification letter, the Hearing Officer stated as follows:
This letter was sent registered mail on February
8. We have not had response from the Post Office on
delivery. When we get that, it will be made part of
the transcript, and let the record show that it was
sent to the last record of address of Mr. Williamson.
The record shows that the letter
yas__s,ent_
by certified - _
mail, not registered mail. It was addressed to "I. B. Williams"
rather than to I. B. Williamson, the Claimant's correct name.
Nevertheless, it was received by the Claimant at his correct _
address.
The problem here is that the Postal Service noted "2-16-88"
as the date of delivery. This was the same day on which the
hearing was scheduled for 9 a.m. There is no record of any earlier
attempt to deliver the letter to.the Claimant. _ __
Based on this delivery time, it would have been impossible
for the Claimant to attend the hearing, having received the notice
in Childress on the same day as thehearing set for Fort Worth.
As noted-above, the Hearing Officer was aware that the Carrier
had not received notice of delivery of the letter.
This situation is in contrast tothe non-appearance con- -
sidered in Award No. 15, where the notification letter sent to
the employee's address of record was returned as "unclaimed",
PLB No. 4370
Award No. 18
Page 3- -
and in Award No. 17, where the employee acknowledged receipt
of the notification one week prior to the hearing.
Rule 26 provides that an employee "shall be apprised, in -
writing, of the charges preferred against him". In this instance,
such notice was not received until after the hearing had begun.
There is no evidence that the Claimant was in any way responsible
for the apparent delay in delivery of the letter. To afford the
Claimant the opportunity to appear in his own defense, a post
ponement of the hearing was clearly in order.
Under these circumstances, the Award will direct that the
Claimant be offered reinstatement, with compensation as provided
under Rule 26 (c). Since the explanation of the Claimant's absence
remains undetermined, however, the Claimant shall. be entitled
R
to back pay only if he actually accepts such proferred rein-
statement.
A W A R D
Claim sustained to the extent provided in the Findings.
The Carrier is directed to put this Award into effect within
30 days of-the date of this Award.
HERBERT L. MARX, JR., Referee
DATED: September 29, 1989 -
NEW YORK, N.Y.