This Division of the Adjustment Board has jurisdiction over the dispute involved herein.
By letter dated September 11, 1995, the Claimant was directed to attend an Investigation in connection with the following charges:
Subsequently, the Claimant was found guilty of the charges and he was assessed discipline of a 60 actual day suspension. This is the matter that is now before the Board for final adjudication. The Organization contests this discipline on procedural as well as substantive grounds.
the Board. after careful review of the record, finds it unnecessary to address each and every contention and argument advanced by the parties because we find that the claim must he sustained due to a fatal procedural error by the Carrier. Nonetheless. it must be noted that. while the Carrier did not carry its burden of showing the Claimant left the property without permission, the Claimant did cross between two freight cars of a freight train on the Carrier's main track. in violation of the Carrier's Safety Rule 4004.
kil employees have an obligation to work in a safe fashion. not only to protect themselves. but also fellow workers and the public at large. The Claimant did not do so in this instance and. therefore. the Carrier's decision to discipline him was reasonably drawn.
Given the Claimant's very poor work record, a 60-day suspension was not an abuse of discretion. However, the suspension must be removed and the Claimant must Form 1 Award No. 13273
be made whole because the Carrier violated Paragraph 9, Rule 36 - Discipline, which reads as follows:
The record shows that while the Hearing was scheduled for September 20, it was actually held on September 21, 1995. The Carrier's notice of decision following the Investigation assessing discipline was dated October 11, 1995 which is 20 days after completion of the Hearing. However, the letter was postmarked October 13,1995, i.e., the 22nd day following completion of the Hearing.
The time limit question is not a matter of first impression. The procedural rule in this case is whether the Carrier complied with the 21-day time limit in Rule 36.
First Division Award 16366 held that when the Rule requires a decision to be "rendered" in writing within 10 days, "rendered" was properly construed as meaning "sent." It further held in pertinent part as follows: " We do not deem that 'rendered' means the making of the decision or even just the writing thereof to the cmplove involved. ~rhe written decision must be dispatched." It also concluded that:
Third Division Award 25609 also ruled on a factually similar case. It held, in part. that:
Similarly, that Award, as well as others. held that notice provisions ordinarily are satisfied by dispatching the notice in the U.S. mail, with the postmark serving as the triggering date of the time limit requirements in the Rules. In this case. there is nothing in the record to show that it had not been a practice of both parties to use the U.S. mail service in communications such as at issue here.
In summary, while the Board much prefers to resolve claims based on the merits of the dispute, when a clear violation of the procedure for handling claims as prescribed in Rule 36 is shown to exist. there is no other alternative but to sustain the claim.
This Board, after consideration of the dispute identified above, hereby orders that an award favorable to the Claimantls) be made. The Carrier is ordered to make the lward effective on or before 30 days following the postmark date the Award is transmitted to the parties.