AWARDS 124 - DENIED REPRESENTATION OF CHOICE

Arbitration Award, Case No. 23A and 23B (Warshaw)

"As to the merits of the Carrier's finding that the claimant was guilty of insubordination and concealment of facts under investigation, I find that this material error and void, ad initio. Rule 17 of the Agreement guarantees the right to a fair hearing. That includes the right to be represented at the hearing by `Counsel of his choosing.' By denying the claimant a postponement at the investigation on September 15 and 16, 1988, the investigating officer deprived the claimant of his fundamental rights under the Agreement. The claimant's firm but polite exercise of his contractual rights to be represented by Counsel of his choosing in this situation do not constitute insubordination or concealment of facts as urged by the Carrier. The claimant was under no duty to acquiesce in the denial of his rights. Indeed there is sound authority which holds that for the claimant to have given testimony would have constituted a waiver of his objection to the right of the Carrier to compel him to testify.

"Summarizing, I find therefore that the separate claims in Cases 23A and 23B should be sustained and the Carrier's actions set aside as to each. In view of these findings it is unnecessary to address other issues raised by the parties."