Upon the whole record and ail the evidence, the Board finds that the parties herein are carrier and employee within the meaning of the Railway Labor Act, as amended. Further, the Board is duly constituted by Agreement, has jurisdiction of the Parties and of the subject matter,. and the Parties to this dispute were given due notice of the hearing thereon. Pursuant to the Discipline Rule, the Carrier is obligated to notify the charged employee of the time and date of an Investigation with a clear notice of the charges. This notification Is usually accomplished by hand delivery or by Certified mail, return receipt.
evidence that the Carrier did attempt notification. This can readily be done by producing the dated receipt from the post office confirm!ng the date mailed, or if personal delivery was attempted and the Claimant refused to accept the notice, testimony to that effect by the individual who attempted delivery, In other words, Carrier must substantiate that It discharged its obligation under the rule to notify the employee. The Carrier does not have to prove that the Claimant received the notice or was aware that such notice was issued.
In this instance, the investigation was attended only by two people, the hearing officer and the employee representative who had no prior contact with Claimant, and was present only because he had received a copy of the notice of charges.
When it was evident that Claimant was not present, the hearing officer opened the Investigation. When the representative inquired about whether Claimant had been notified, the hearing officer indicated that the Carrier had no signed receipt nor returned notice. When the representative requested a postponement to determine if Claimant received the notice, the request was denied. At this juncture it would have been proper to introduce the receipt stamped by the post offce reflecting the date the notice was mailed.
Under any circumstances other than this case, the claim would be sustained and the Claimant ordered reinstated with pay for all time lost, but in November, Claimant was charged with his first violation of Rule 1.5. He was suspended from Service by the Medical Npartment. He was Instructed to contact a counselor and proceed with rehabilitation or whatever the counselor advised. The Investigation was set up because of Claimant's alleged failure to contact a counselor (which must be done within 45 days of being notified of the suspension).
To this Board, Claimant has lost time because of the suspension, not because of Carrier's action of holding the Investigation.