The Level; 5 UPGRADE discipline and te1mination to Mr. D. Brown for an alleged violation of Union Pacific Rule 1.13 (Reporting and Complying with Instructions), Rule 1.15 (Duty Reporting or Absence), and Rule 1.6 (Conduct) was not justified.
As a consequence of the violation refer1·ed to in Part 1 above, the claimant shall be reinstated with a11 rights due to him under the Collective Bargaining Agreement.
Facts:
By letter dated December 28, 2012, the Claimant was directed to attend an investigation and hearing on January 8, 2013 "to develop the facts and place responsibility, if any, that while employed as Trackman, on Gang No. 1104, at Bloomington, Illinois, near Milepost 125.95, Joliet Subdivision, you allegedly failed to rep011to work from November 29 through December 10, 2012.
The letter further indicated that, if substantiated, the allegation would place the Claimant in violation of the above-noted Rules 1.13, 1.15 and 1 .6 and that he could be subject to Level 5 discipline, permanent removal.
Carrier Position:
Substantial evidence shows the Claimant's continued inability to comply with Carrie1·'s attendance policy despite previous coaching and discipline. This third violation within 36 months has resulted in removal. The Claimant did not even attend the investigation, despite notice sent to his add1·ess of record on file. The Claimant's violation was serious, created additional work and thus safety issues for the team and showed his lack of interest in maintaining his employment. The permanent removal sould be upheld by this Board. Clearly, the Clairnnt
1
Organization Position:
The Carrier cannot show that the Claimant was provided with a Notice of Investigation. There is strong precedent for the Boa rd to require proof of receipt of the Notice-not simply that it was sent to the Claimant's address of record-so that he had every opportunity to defend himself and to present witnesses on his behalf. The procedural defect notwithstandi ng, the Carrier has failed to meet its burden of proof, but if the burden is deemed to have been met, the dismissal was excessive and unwarra nted. The timing of the earlier I 0-day suspension and the dismissal deprived the Claimant of the opportunity to correct his behavior so that the dismissal was simply puniti ve.
Findings:
In PLB 7633, Award No. 21, involving the same Claimant, the initial Formal Notice of Investigation was delivered to the Claimant's address of record via UPS and signed for by "Jane." A subsequent Notice of a postponement was sent via U.S. Postal Service and returned because of an insufficient address. Because there was no ind ication that the Claimant, unaware of the postponement, appeared at the initially-scheduled investigation, the Board assumed that he would not have appeared at the postponed investigation and that the Carrier properly proceeded without him.
The Board distinguishes the facts of this case from the facts noted above. Here the Formal Notice of Investigation was sent over the signature of MTM Patton, as were the above noted Notices, only by U.S. Postal Service, and again returned because of an insufficient address. Thus the Claimant never received the Notice of an investigation that concerned possible dism issal. In essence, the Carrier sent a Formal Notice oflnvestigation where possible dismissal was involved when it should have suspected that the Notice would never be received by the Claimant. Nor is there any indication that efforts were made to find an address that should have resulted in delivery of Notice to the Claimant.
The unique facts of this case place the Board 011 the horns of a dilemma. On the one hand, the Board is aware of Rule 2(g) that requires employees to have a current address 011 file at all times. On the other hand, the Board is also well aware of the Rule 22(a) requi rement to hold a "fair and impartial" hearing. PLB 6402, Award No. 118 upheld the dismissal of an employee who d id not attend an investigation after Notice was mailed to the address of record. That award does not set tenth the contentions made by the parties; thus it is impossible for this Board to know whether the Organization argued that the Notice was never received. Furthermore, the Boa rd cannot discern whether the Claimant d id not appear because he was not notified or because he was notified, but having been caught in and confessed to dishonesty, he decided that his appearance on the dismissal he assumed would be forthcoming was a waste of time. Therefore, this award does not provide the on-property guidance that this Board would have welcomed. The Organization has provided significant support for the requirement that when challenged, the Carrier must provide proof of receipt of the Notice of an investigation even when
such Notice is sent to the address of record, The Board's conclusion, based on the unique facts of this case and without intent to set precedent, is that the Claimant did not receive the required fair and impartial heai·ing and that the claim must be resolved on that basis.
Award:
Claim sustained.
Order:
The Board, after consideration of the dispute identified above, hereby orders that the record of the Claimant be cleared and that he be reimbursed for any net loss of compensation resulting from the imposition of the Level 5 UPGRADE discipline, However, because the Claimant failed to report to work, the case is remanded to the parties for their joint detet·mination. of how much net compensation .is due. The Carrier is to make the award effective on or before the thirtieth (301h) day after the award is adopted.
Andrew Mulford, Organization Member 
B, Helburn, Neutral Referee
