The Carrier and the Employees I^voJ.ve$ 1.^. this dispute are respectively CaXZ'3.eY and Fsnp?Gyees wichi:: the meaning n£ the

0ilway Labor Act, as amended. 'Phil Board has iuf5stiicti4n of the sputc h.E:rj involved.

C3..a.imant hare involved eras summoned for ferena..l invest:: ,at.i.tsn to "determine the facts and place your i"e8po17Sib7.XiLY, if any, in connr----tivn wail your alleged ~Fx4essive absenteeism for the period 1flf3J97 through i1,r34/9i, and all circumstances related thereto." Following the invas:,z.c~ataon Carrier found claimant guilty of excessive kbse.^.LeeisR and assessed a 10 day actual suspension from service as discipline.

The axqan:zatioli h4m argued before this Board that Carrier violated Article 46iE) of the governing agreement which reads as

" ib) Yartlm¢n or saitchtenders ca.^.tinued in the service or not caas·,ired Fending an investigation of an alleged offense shall be ot.if.ied, within five days after the Company has information of the offense, that, a charge. is bending. Within five days thereafter an investigation shall be held, of deriandect a^d a decision shall tae :erdered anti rude affective within three days after the inTrestigatian."

~`~ ;uo .bogy Award No. 37

·-,^his rule clearly provides for a notification vrit:ii.n S days

after the Corpar.-y has ,ir.=fpruztion of the oft2r.8e, a.^.d the Organizal;iar. contare7s that while the !_'lPqed offense e-Vir3ed Nc:v~m-bex

30, 1997, the charge letter eras not generated until Deaambsr 11,

1991, well b6:ycr,d the 5 day limit specified in the Rule.

Carrier har> argued that the report covering cjalmant,s re--c--01 from October 2 through rove.^.>5er 34 w4s not g8r~eraced by a Company Officer until December k. 137, and t35rt the DeCam$er 11 charges letter was well within th$ S day time frame. It is CarrierW position Chat the governing date is t.ttg date: the off'u-er wtto i8 respansible for issuing the charge has knowledge of -he incident u;tdf-r review.

During the Course, of tile investigation Caait' o

representative timely objected to Carrier's failure to abide by Article 46 ih) , and developed through questioning of a company witness that the rcpt: t raUld have beet generated tai irtC3udc dates up to and i :c7,ud~r:·g December 8th. C1a.imant's sepr$sentat.iae else referred to Award No. 18 rendered by Public Law Board No. 5714 o:: this property, which cover* a strikingly similar dispute and wT:erein the. Hoard ruled that the governing rule "crates an absolute time which must be followed,"

Carrier has argt:ed that Award No. 1§ of PLB 5714 is palpably in error and s:roc:3,d not be fotlc;.ed in the instant case. it is Carrier°s position before :.his Beard that "Carrier's first' knowledge :n the ic:sta nt case war When Superintandsit Dyer (the officer wfav issued the c:2tafqe letter) was given the report of clai::ant'S at;:endacsCe for the period CGt4bcr lr :R97 t7vxough ~;aver.Tre: 33,

:49'x."'

It is the opinion of this Board that the position taken by Carrier cannot se upheld in a situation such as that here presented. The enplayea's work record is a Company record and is available to the Company at ail times. I£ this Beard were to agree with Carrier's argument it would effectively delete the 5 day notice provision from Article 9fi;b) f i.e.. the company officer who prepares the charge letter could wait any length 4f time before generating the charge letter and then merely stets that was the first date: Tie eras awa.t2 of the alleged in£ractiG:3. The intent ref the Rule is quite clear: i.e., the c::asga:3 employee "shall be .notified, within five days after t?se company has information of the offense, that a charge is: pending.'"

The record before this Board i5 abundantly clear thdc the G:rafrany toot .^=ecessar£ly :~he charging officer) .:re this particular dispute was aware of ciaimaars attendance record on November 30.

0957 (covering ithe period from October 'A through November 30),

lansequently, under the liters: Language of Article 46tb'r claimant

KGB N6-
4,0
59
Award No-
-37

.g.