Special Board of Adjustment 910, Award No. 445 (Peterson) 

"In Award No. 298, as in Award No. 240, of this Special Board of Adjustment No. 910, with this referee assisting, it was held that the Carrier has an obligation to establish for the record that an employee cited for a company investigation has been duly notified of that intended hearing.

"These awards recognized that a hearing in absentia could properly proceed without the first-hand benefit of probative evidence to substantiate that the certified notice of the hearing had in fact been acknowledged by the employee or that the notice was being returned as not claimed or undeliverable by the Post Office. The Board cautioned the Carrier recognize, however, that it proceeded at its own peril with a hearing under such circumstances should it not be able to produce evidence to support the timely delivery or handling of the hearing notice by the Post Office.

"In the case before us it is evident that these basic conditions of notification were not properly satisfied at the time the Carrier proceeded with its hearing against the Claimant. Actually, testimony of the Road Foreman, supra, reveals that the Carrier was aware that its notice of hearing to the Claimant was still in the custody of the Post Office at the very minute the hearing was scheduled to and did in fact commence, i.e., 10:00 AM on December 14, 1988.

"Moreover, the record shows that the Post Office did not effect delivery of the hearing notice to the Claimant until December 16, 1988, or two days after the scheduled hearing. This is, according to Carrier correspondence of record, the date the Claimant was said to have signed a return receipt postal card in acceptance of delivery of the Carrier's notice. This same correspondence indicates that the Claimant had reportedly not picked up the notice until December 16, 1988 due to his having been out of town for several days.

"Accordingly, this Board believes that December 16, 1988 became the date that the Carrier had affected `personal delivery or proof of mailing within the specific time limits' of a notice of investigation to the Claimant pursuant to Rule 93 (1) of the Schedule Agreement.

"In the opinion of this Board, the requirements of written notice go beyond the placement of a notice in the mail with no regard to either the actual or constructive delivery of that notice to the affected employee. We would think that where use is made of the mail services for certified delivery of a hearing notice that it is intended sufficient time will be provided for delivery to be accomplished or the notice to be returned as unclaimed.

"Clearly, the notice requirements of Rule 93 (1), or the principles of due process, are not satisfied by testimony to the effect that a notice of hearing was sent to the same address of the affected employee as had prior correspondence by the Medical Department. Nor are these notice requirements appropriately satisfied by declarations that on the day of the investigation that a search was being made of the building or the depot for the employee who is being charged, especially when it is known at such time that the notice of investigation has not even been effectively delivered. The time consumed in such endeavors would have been better spent in telephoning or writing the Claimant and a representative of the Organization to set a date for an adjourned hearing.

"Under the circumstances, this Board finds that the Carrier hearing conducted on December 14, 1988 must be declared null and void since the Claimant was wrongfully denied benefit of a timely opportunity to appear at such investigative hearing. The Board will therefore direct that the Claimant be restored to active service with seniority and other benefits unimpaired, with pay for time lost, if any, or, if not subject to active service on the basis of a continued reduction in the work force, that his name be returned to the seniority roster as subject to recall from furlough."