PUBLIC LAtr' BOARD NO. 1844
CASE NO. 84





STATEMENT OF CLAIM:








OPINION OF BOARD:

Division. Under date of November 13, 1978, he was served with the following

 Notice of Investigation:








                    Charge: Your failure to properly protect your assignment on November 7, 8, 9, 10 and 13, 19 8, and furnishing false information to Company Doctors regarding your alleged injury on November 8, 1978, in the vicinity of Tower KO.


          You may be accompanied by one or more persons of your own choice subject to the applicable terms of the Schedule Agreement with the Brotherhood of Maintenance of Way Employees; anti you may, if you so desire, produce witnesses in your own behalf without expense to the Transportation Company.

The Assistant Chairman of the Brotherhood, Claimant's duly accredited representative under Rule 19 of the Agreement, requested and was granted a postponement of the hearing from 10:00 AM to 1:30 PM on January 16, 1978. However, on the afternoon of November 15, 1978, one day before the scheduled hearing, Claimant himself telephoned Carrier and demanded another adjournment of the hearing until November 27, 1978; on the ground that his private attorney was unavailable until the later date. Rule 19 was read to Claimant and he was advised that he should handle his request through his Union representative. From the record it appears that Claimant rejected that information and made no contact with his Brotherhood representative. Instead, he tried again on the evening of November 15 and the morning of November 16, 1978 to obtain an adjournment so his attorney could represent him. He was again referred to his Broterhood by the Carrier. But Claimant stated in words or ;;substance that he would not come to the hearing without his attorney.
 At the time appointed for the hearing on November 16, 1978 Claimant's Brotherhood representative was present but Claimant never appeared. The hearing went forward in his absence. Following that investigation Claimant was found guilty on the charges and dismissed from service. The instant claim was handled without resolution on the property and appealed to this Board for determination. Claimant was proi·ided due notice and opportunity

                                      / !f 41V-

                                                          3

T
 1L- ,

          to attend the hearing of this Board. He chose not to appear but he was represe°,ted at our hearing by the Brotherhood.

        Careful. review of the record and the clear language of Rule 19 shows that the proceedural objections relative to the non-adjournment of the hearing are without substance. Neither Claimant nor his private attorney have an enforceable contract right of adjournment. Absent a request for postponement by the Organization or the Carrier, the last sentence of Rule 19(a) does not come into play. Claimant was in no way deprived of his right to representation under Rule 19. He had proper notice and representation and his refusal to attend the hearing was at his own peril. See Award 3-21626. The record evidence supports Carrier's findings of culpability and we cannot find the penalty arbitrarily excessive.


        FZNIDINGS : -.

        Public. Law Board No. 1844, upon the whole record and all of the evidence, finds and holds as follows:

        1. that the Carrier and Employee involved in this dispute are, respectively, Carrier and Employee within the meaning of the Railway Labor Act;

        2. that the Board has jurisdiction over the dispute involved herein; and


            3. that the Agreement was not violated.


AWARD

Claim denied.


                  Dana E. Eischen,-.Chairman


H. G. Har er, zployee member R. -W. Schmieae, Carrier Nember

                                        ~' h4wd.


Date: f'?' f