AWARDS 94 - HEARING HELD IN ABSENTIA

Second Division Award No. 12163 (Duffy)

"Claimant was charged with insubordination for refusing to follow instructions to report to the office of the Plant Manager on March 7, 1990. Claimant had last reported for duty on February 6, 1990. After a Hearing in absentia on April 11, 1990, Claimant was found guilty as charged and assessed the penalty of dismissal.

"After reviewing the record, the Board is satisfied that there is substantive evidence that Claimant was guilty as charged. Failure to follow proper orders is a most serious matter and may properly lead to dismissal. Although this Board has on many occasions held that it does not favor Hearings held in absentia, Claimant was properly notified of the Hearing and did not appear by his own choice. We therefore find no basis for disturbing the Carrier's decision in this matter."

Second Division Award No. 12237 (Duffy)

"After reviewing the record, the Board is satisfied that there is substantive evidence that Claimant was guilty as charged. Although he was tried in absentia, a Notice of Investigation had been properly sent by the Carrier, and Claimant's Representative attended the Hearing and had an Opportunity to examine the evidence and question the witnesses. A review of the transcript demonstrates that the Organization pursued all relevant points on behalf of the Claimant, and that the Hearing itself was conducted in a fair and impartial manner. We thus find no basis to disturb the Carrier's decision in this matter."

Third Division Award No. 29486 (Simon)

"The Organization first objects to the discipline because the Investigation was conducted in Claimant's absence. According to Claimant's representative, who requested a postponement at the beginning of the Investigation, Claimant was on vacation. We do not find merit in this objection. First of all, the fact that Claimant was not scheduled to work on the day of the Investigation did not preclude his attendance. Secondly, it was unreasonable for Claimant and/or his representative to wait until the Investigation was commenced before seeking the postponement. At that point, given the circumstances herein, Carrier was under no obligation to grant a postponement. Conducting the Investigation in absentia is not a violation of the Agreement." (Emphasis theirs)

Third Division Award No. 29497 (Wesman)

"At the outset, the Organization raises a procedural objection based upon Carrier's holding the Hearing in absentia. The Organization points out that there is no proof that Claimant actually received the notice of Hearing or of postponement. The Organization further maintains that it is Carrier's responsibility to notify Claimant, not the Organization's. Therefore, the presence of Claimant's representative at the Hearing is not sufficient evidence that Carrier has fulfilled its contractual obligation to notify Claimant.

"It is uncontroverted on the record before the Board that Carrier sent no fewer than three letters to Claimant notifying him of the initial charges, the original Hearing date and time, and the subsequent postponement of the Hearing. There is no evidence offered in the transcript of the Hearing or in subsequent correspondence between the Parties to suggest that Claimant's absence from the Hearing was other than voluntary. Under the circumstances, we do not find Carrier's denial of the Organization's motion to postpone the Hearing on March 16, 1990, to be unreasonable. Nor do we find that the procedure was thereby fatally flawed. (See Third Division Awards 15007 and 29774)." (Emphasis theirs)

Second Division Award No. 12339 (Connolly-Fibish)

". . . With respect to the Organization's Claim that the trial was not fair and impartial since it was held in absentia, the Board finds this contention to be without merit. Not only did the Carrier notify the Claimant of both trial dates by certified mail, with neither certified letter being returned by the postal service, but at the outset of the meeting the Hearing Officer asked numerous questions of the General Foreman as to whether he had received any information about the Claimant's whereabouts and allowed the Organization to ask similar questions of the Foreman. Several Second Division Awards have held that there is nothing improper with the Carrier's holding an Investigation with Claimant in absentia, provided the Carrier gives proper notification of the Hearing and advises the Claimant of his rights (see Second Division Awards 7844, 8225) and that this does not constitute an unfair Investigation. See also SBA No. 894, Award 313, which states that the Claimant who chooses not to attend an Investigation is nonetheless bound by the record established at such Hearing and that `failure to attend constitutes a waiver of the procedural rights to which [one is] entitled under the applicable discipline rule.'"

Second Division Award No. 12690 (Hennecke)

"The Investigation was originally scheduled for October 9, 1991, and then rescheduled for October 29, 1991, by agreement of the parties. Claimant received notice of the rescheduled investigation via certified mail on October 19, 1991, however, he did not attend the investigation, which was held in absentia. On November 18, 1991, Claimant was notified that, as a result of the Investigation, he was dismissed from the service of the Carrier.

"At the outset, the Organization alleges that Carrier proceeded with the Investigation without Claimant being present over the objections of his representatives. The record, however, discloses no objection was made in the Investigation regarding the decision to proceed without Claimant and no request for further postponement was made by Claimant or his representatives. This Board has consistently held that a Claimant may choose not to attend an investigation, however, he is bound by the record established thereat. Claimant's failure to attend constitutes a waiver of the procedural rights to which he is entitled under the applicable discipline rules. Nonetheless, Carrier still bears the burden of proving its charges."

Second Division Award No. 12616 (Muessig)

"With respect to the hearing held in absentia, we find that it was conducted in a fair and proper manner. While the Board does not favor hearings without the presence of the person most affected, the Carrier's decision to proceed without the presence of the Claimant was not an abuse of its discretion. The Carrier attempted to send its notice of Investigation to the Claimant on three different dates. It was returned each time unclaimed. The employee has an obligation to keep his employer informed of his current address. The Carrier has no obligation to go beyond reasonable means to deliver its notice letter. Barring highly unusual facts or circumstances, the Carrier is not required to go beyond its actions in the instant case, with respect to the matter of proper notification. Moreover, the Board notes that the Organization represented the Claimant at the hearing and actively pursued all relevant issues."

Second Division Award No. 12624 (Muessig)

"The investigation was held as scheduled although the Claimant was not in attendance. The Carrier's Supervisor, who sent the notice of investigation, testified that the investigation notice letter was sent to a post office box because the Claimant refused to provide his home address and his home telephone number. While the Board prefers to review an investigation which includes the presence and the testimony of the person most effected, there are situations where the Carrier may rightfully conduct an investigation in absentia. We find such a situation in this case.

"The record shows that the Carrier made three attempts to deliver the notice of investigation. The Claimant had well over two weeks to pick up the notice. He did not provide a home phone number. Given these circumstances, we find that proper notice was constructively given to the Claimant. The Claimant has no one to blame but himself for not receiving the notice of investigation."

Second Division Award No. 12889 (Yost)

"Under the circumstances of record, we conclude that Carrier's conducting officer did not prejudice Petitioner's contractual rights to a fair and impartial Investigation by proceeding with the Investigation in absentia. Numerous prior Awards of the Board hold that where the charged employee fails to appear at an Investigation, Carrier may proceed without him. One such Award is Second Division Award 8555, wherein the Board held:

'. . .It is well established that failure of a Claimant to appear at an investigation authorizes the Carrier to proceed without him and that such failure to appear is at the Claimant's own peril.'

"See also Third Division Awards 13127, 20113 and 24880."