NATIONAL MEDIATION BOARD
PUBLIC LAW BOARD NO. 4370
BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES
and
BURLINGTON NORTHERN RAILROAD COMPANY
AWARD NO. 52
Case No. 52
As stated by the Carrier, the Claimant was absent from duty without permission on Friday, April l0, 1992. On the same date, the Trainmaster sent a letter to the Claimant's address of record, directing him to attend an investigation on Thursday, April 16, 1992 "for the purpose of ascertaining the facts and determining your responsibility, if any, in connection with your alleged
failure to obtain authority to be absent from your position on Friday, April 10, 1992".
The record indicates that the notice sent by certified mail - was "unclaimed" on April 11 and on two dates subsequent to the scheduled investigation. However, the Carrier cannot be found at fault for mailing the notice to what it asserts was the Claimant's address of record.
The hearing commenced as scheduled on April 16. Neither the Claimant nor an organization representative on his behalf was present. The hearing officer was advised of the mailing of the hearing notice but did not inquire if receipt of delivery had been obtained.
According to the organization's undisputed contention, the Claimant was on duty on April 16 and could readily have been contacted as to his failure to appear at the hearing. The Board also notes, as pointed out by the organization, that no attempt was made to deliver the hearing notice by hand to the Claimant (as could have been done prior to April 16) and no copy of the notice was sent to the Organization. While Rule 26 requires neither of these procedures, the organization contends that such procedures are usually followed but were not in this instance. The organization also points out that the Claimant's supervisor initiated the hearing notice on the same day of the absence, without waiting for any discussion with the Claimant when he did report for duty.
Rule 26 states that an employee "shall . . . be present" at an investigation. This is not of a case of an employee who has been
continuously absent without notice and his absence from an investigation could logically be anticipated.- This is also not a case where there is proof of receipt of notice or one where an employee has repeatedly failed to appear, despite postponements. In this instance, it is reasonable that Carrier representatives at the hearing would know if the claimant was on duty at the time; if so, contact could have been made with him. Alternately, a single postponement could have been provided to insure that notice of the hearing was indeed received.
A hearing officer may proceed with an investigation in the absence of the cited employee, but this is done at considerable risk. There must be substantial justification for such action. Consider the elements in this instance -- hearing notice initiated on the same day as the offense; no proof of delivery; no organization involvement; no consideration that the Claimant was and had been on duty (rather than having "disappeared"); no move to postpone the hearing. All of these put together lead the Board to the conclusion that a fair hearing was not provided, and the resulting disciplinary action must be rescinded.
Claim sustained. The Carrier is directed to place this Award into effect within 30 days of the date of this Award.