Parties to Dispute:

Brotherhood of Maintenance of Way Employes

(Consolidated and Pennsylvania Federations)






Statement of Claim:

      Claim on behalf of R. Kaczynski far removal of a ten (10) day actual suspension assessed following a formal investigation held on November 29, 2001 in connection with his failure to follow instructions, performing an unsafe act, arid violation of safety Rule 1202 on October 9, 2001, resulting in a. personal injury to himself.


                (C;arri6rFile: MW-DEAR-01-61-L,\4-404)


Upon the whole record and till the evidence, after hearing, the Board finds that the parties herein are carrier and employee within the meaning of the Railway Labor Act, as amended, and this board is duly constituted by agreement and has jurisdiction of the parties. and subject matter.

 This award is based on the facts and circumstances of this particular case and shall not serve as a precedent in any other case.

 Claim disposed of as follows: By letter dated October 12, 2001, Carrier notified Claimant to report for an investigation on October 31. 2001. By letter dated October 17, 2001, the Assistant General Chairman, as Claimant's representative, requested a postponement of the October 31 hearing. By letter dated October 22, 2001, Carrier confirmed that the hearing had been postponed by mutual agreement to November 6, 2001. By letter dated November 2, 2001, Carrier confirmed that the investigation had main been postponed by mutual agreement, dais time to November 20, 2001. On November 20, 2001, Claimant and his representative attended the hearing, waited forty minutes and, when the hearing officer had yet to arrive, declared the investigation abandoned and left. By loiter dated November 27, 2001, Carrier notified Claimant and the Organization that the hearing had been rescheduled for Novenrber?9, 2001. By letter dated November 28, 2001. the Assistant General Chairman advised Carrier that the Organization considered the case abandoned and that the Organization and Claimant would not attend the

                                            d (i~ y


November 29 hearing. The November 29 hearing proceeded in absentia, after which, Carrier found Claimant guilty of the charge and assessed him a tan clay suspension.

 Carrier contends that the Assistant General Chairman acted precipitously by declaring the case abandoned instead of trying to find out what had happened to the hearing officer, and again by boycotting the November 29 hearing. We agree. By far, the more prudent course of conduct would have been to attend the November 29 hearing and protest the claimed violation of the Agreement.

 Nevertheless, we must de?ennine whether Carrier's actions violated the Agreement. Rule 3fl(a) of the Agreement provides:
      An employee who has been in service snare than sixty (60i calendar days shall oral be disciplined or dismissed without a fair and impartial investigation, at which investigation lie may be assisted by duly authorized representatives. lie may, however, be held out of service, except far minor offenses, pending such investigation.

      The employee will be given not less than ten (107 days' advance notice, in writing, of the date of the investigation which shall net forth the precise charge against bizn with a copy to the general chairman, The investigation shall be held within 30 days of first knowledge of the offense. At the request of either party the investigation will be postponed: however, such investigation ill not be postponed in excess of tan (10) calendar days beyond the date first set except by mutual agreement.


The postponement to November 29, 2001, leas not by mutual agreement. Indeed, no request for postponement was aver made to the Organization. The hearing officer simply failed to show up for the November 20 investigation and Carrier unilaterally sewed notice on Claimant and the Organization to attend an investigation an November 29. Such conduct was in clear violation of the Agreement. See, e.g., Third Division Awards Nos, 24731 & 23082.

 Carrier relies on Public Law Board 4561, Award No. 43. In that case, the investigation was originally scheduled far November 18, 1993, and postponed by mutual agreement to November 23, 1993. Fifty-five minutes before the hearing was scheduled to begin, Carrier notified the claimant and the Organization that the hearing was postponed. Carrier rescheduled the hearing far Novoml~-r 25, 1993. The unilateral postponement was due to emergency conditions caused by derailments that prevented Carrier from having a hearing officer available on November 23. The Hoard held that Carrier had violated the Agreement but that the violation was insufficiently serious to warrant setting aside the discipline. The Board explained:

      Edith regard to sloe Organiz bon's objection to the Carrier unilaterally postponing the November 23, 1993 Investigation, it was a contractual error, but under all the circumstances not such a material error that requires the Board to vacate the assessed discipline. Since the delay was only for two days and sinew the Carrier did not act arbitrarily and without cause, and because the exigencies of sloe situation compelled the Carrier to act in the manner in which it did, the Board concludes that the procedural error was not of such magnitude that required the discipline be either vacated or ancrdit'ied.

TLB 63q4
A cx> 1
In the instant case, the delay was fine nine days, considerably longer than in PLB 4561, !Award No. 43. Indeed, it wasn't until seven days after the scheduled hearing that Carrier even provided notice of the postponement. Most significantly, the instant case presents no exigent circumstances justifying the unilateral postponement. There were no derailments or other good cause for the postponement. The hearing officer simply failed to show up. The only explanation offered for this was provided at the November 29 hearing as follows, "Mor some reason there was some mix-up in communication that people involved in the investigation for the carrier did not get the information:' This rather cryptic reference to "some mix-up in communication" neither explains nor justifies Carrier's failure to carry out its responsibility to notify all parties involved of the date set for an investigation and to assure that the hearing officer attends and presides. Claimant should not bear the burden of Carrier's failure to fulfill its responsibilities. Accordingly, the claim is sustained. Carrier shall remove the suspension from Claimant's record and shall make him whole for lost compensation far time held out of service dew to the suspension.

                  Z4, /_~

                  / /v~

                  M. H. Malin

                  Chairman sand Neutral Member


~Xf.-~ n ; ~ f ~·
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 P. K. Geller, Sr. L7. L. Derby
 Organization Member Carrier Ivfeanber

 Issued at Chicago, Il1_inois, March 10, 2Q03.