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                CONSOLIDATED RAIL CORPORATION


                          -VS-


            BROTHERHOOD OF LOCOMOTIVE ENGINEERS


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 DOCKET NO. CRE-19987-D
 CASE N0. 113

 CLAIMANT: ___J.V.-Gautigri _____________________________________

 FOR THE CARRIER: S.R. Friedman, Director
 Labor Relations
 FOR THE ORGANIZATION: Robert Godwin, General Chairman
 BLE
 NEUTRAL: Dr. James R. McDonnell

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EMPLOYEE'S STATEMENT OF CLAIM - -

Appeal of Engineer J.V. Gautieri, #766498 from the discipline of (30) days actual suspension assessed in connection with the following.


      We request Appellant be paid for all time lost, his benefits

be restored and the discipline be expunged from his record. -

 OUTLINE OF OFFENSE
      Failure to comply with authorized track speed at -

approximately 8:53 AM on January 7, 1999 between CP Jersey MP
 (79.5) and CP Hatch MP (78.0) on the Trenton Line while assigned
 as the Engineer on ALCA6 on duty at 3:OD AM on January 7, 1999.

 FINDINGS OF THE BOARD

The Board, after hearing the whole record and all evidence finds that the parties herein are Carrier and Employee within the meaning of the Railway Labor Act, as amended, that this Board is duly constituted by agreement and has jurisdiction of the parties, claim and subject matter which was held on May 18, 1999 in Jacksonville, Florida. The Board makes the following additional findings:


DECISION

There is a threshold question here which must be dealt with before the merits of the case can be approached. It concerns the matter of time limits for the delivery of the Notice of Discipline.


Article G-M-11 - Discipline and Investigation, in particular (d)(1), and (e)(1), which say, in part:


    (d)(1) An engineer directed to attend a formal investigation to determine his responsibility, if any, in connection with an act or occurrence shall be notified in writing within 7 days from the date of the act or occurrence or in cases involving stealing or criminal offense within 7 days from the date the Corporation becomes aware of such act or occurrence. The notice shall contain:


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                                              sa.4Oa. qqZ CA w/j mo . 113


        (A) The time, date and location where the formal

        investigation shall be held.


        (B) The date, approximate time and the location of the -

        act or occurrence.


            (C) A description of the act or occurrence which is the subject of the investigation and rules which may be involved.


            (D) A statement that he may be represented by his duly accredited representative.


        (E) The identify of witnesses directed by the

        Corporation to attend.


      (2) When a letter of complaint against an engineer is the basis for requiring him to attend the formal investigation, the engineer shall be furnished a copy of the written complaint together with the written notice for him to attend the investigation.


      (e)(1) The investigation must be scheduled to begin within 7 days from the date the engineer received notice of the investigation.


On page 8 of the transcript of investigation it says, in part:


          MR. SMALE: I would like to put in the record that as of this date, Mr. Gautieri has not received a G-250 or the decertification letter. The address and everything is correct on here, but he has not received either copy.


The Carrier's Notice of Investigation ordered the Claimant to appear on January 19, 1999 while the US Postal Service Receipt for Certified -Mail shows the date o£ delivery as January 27, 1999. The purpose of G-M-11 (d) (1) and (e) (1) , is to give the charged employee timely notification but also to provide him with the specifics of those charges outlined in G-M-11 (d)(1) A-E.


In this case, the Claimant showed up for the investigation because he had been verbally notified. Had he not he ran the risk of being charged with insubordination, a risk no reasonable person is likely to take. But, nothing in the record demonstrates that the Claimant knew or understood the specific charges being brought before him.


Arbitral theory and practice have demonstrated repeatedly, including this Board, that the Claimant must be provided with due process. He did not receive same in the instant claim.


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Claim sustained. The Claimant shall be made whole for any

 losses incurred. The matter shall be expunged from his
 employment record..

 Se &~Pj- ~ l SSz5711r
 S.R. Friedman, Rtes Director
 Labor Relations

              n ral Chair~ar~


BLE

 ~~7
 D James R. McDonnell
 ~utral

 October 25. 1999
 Date