claimant's failure to report an alleged on-duty injury, a medical report was introduced that showed she had suffered a back injury from an accident in the mid-April 2007 time frame. This back injury time frame was approximately one month before she applied for employment with the Carrier.
According to her testimony at that investigation, she confirmed that she had the prior back injury and did not inform the Carrier of it. After that investigation concluded, the hearing officer examined her employment application materials. The Carrier's Post-Offer Health Questionnaire, which claimant completed on May 9, 2007, asked if she had ever had a back injury. She marked the box corresponding with "No."
After reviewing claimant's testimony as well as her Questionnaire response, claimant was given notice of anew investigation into whether she falsified her application materials and concealed information. She was issued notice of the new investigation by certified mail. She accepted the letter and signed the associated return receipt green card.
Thereafter, the Organization requested a postponement and the Carrier granted it. A revised notice was sent by certified mail to the same address for claimant. It went unclaimed. The Organization, however, did receive its copy of the revised notice.
The Organization requested another postponement and it was granted. The Carrier sent another revised notice with the rescheduled hearing date of October 21, 2008. The tracking record of the postal service showed that delivery to the same address was attempted. There was no evidence the letter was claimed. Once again, however, the Organization did receive its copy of the second revised notice.
The hearing convened as twice rescheuled on October 21, 2008. Claimant was not present. The transcript shows that she had not had any conversation with the Organization to explain her absence. Although the Organization verbally requested another postponement due to claimant's absence, the hearing officer declined the request and chose to proceed. The Organization left the proceeding. A record was developed that included the testimony of claimant at the August 26, 2008 investigation as well as a copy of her Post-Offer Health Questionnaire.
Based on the record developed, the Carrier determined that claimant had violated its rules as charged.
During the on-property process of appealing the Carrier's dismissal determination, no additional information was provided by the Organization or claimant to explain her absence or to provide justification for her failure to attend the investigation.
It is well settled that a claimant cannot defeat the effect of proper notification attempts by i4gnoring them. If an employee fails to attend an investigation where proper notification procedures have been followed and no justifiable excuse is shown then or later, the right to participate in the Public Law Board No. 7104 Award No. 38
