STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood (GL-5117) that:
(a) Carrier violated the current Agreement, effective January 15, 1955, and supplements thereto, between the parties, when it failed to render a decision within ten (10) days following completion of Investigation on August 23,1961.
(b) Edward B. Pongones shall now be compensated for all lost time as follows: Five and one-half (5'%s) hours at pro rata rate of Engine Dispatcher's position for April 28; eight (8) hours pay at pro rata rate for April 29, 30, August 17, 18, 19, 20, 21, 24, 25, 26, 27, 28, 31, and September 1, 1961: also eight (8) hours pay at overtime rate for August 22, 23, 29 and 30, 1961.
(c) Edward B. Pongones shall now have his record cleared of all charges against him.
OPINION OF BOARD: The dispositive issue here presented is whether the Carrier failed to comply with the following rule of the Agreement:
The material facts are that Claimant was charged with and found guilty of being intoxicated when he reported for duty on April 28, 1961. After two postponements the investigation was held on August 22 and 23, 1961. The discipline assessed was seven days suspension (from April 28 to May 4, 1961) and 30 demerit marks. Notice of the discipline was issued and sent on September 1, 1961, via railroad mail to Claimant's supervisor for personal delivery to him. Because of rest days on September 2, 3, 4, 5 and 6 (the latter two
were Claimant's off days) the formal notice of discipline was not delivered to Claimant until September 7, at which time he refused to sign the receipt. It was finally delivered to him on September 18, 1961.
The Employes contend, in effect, that Rule 26 requires the Carrier not only to render a decision but to insure its receipt by the employe within the ten-day period. The rule does not make the Carrier an insurer nor can it reasonably be read to mean that a decision is not "rendered" until it is received. (See Awards 10254, 12001, Fourth Division Awards 1177, 1717; First Division Awards 16366, 16739). This line of authority holds, in effect, that notice of the decision must be dispatched within the time limit in such manner as may reasonably be relied on to actually get the notice to the employe, and that prima facie evidence of compliance with the rule stems from the date the notice is sent, not from the date it is received.
We concur in the reasoning and conclusion of these decisions interpreting and applying similar disciplinary notice rules, and find them controlling here. And while we agree with the Employes that this Carrier might well have used the registered mail system of the U. S. Post Office Department rather than relying, as it did, on the vagaries of the railway mail, nevertheless that failure is not sufficient to set aside the discipline imposed, particularly where the fact that the decision was rendered and dispatched on September 1, 1961, (within the time limit), was not challenged by the Employes.
Third Division Awards 8160 and 8820, cited and relied upon by the Employes, are not in point. There the disciplinary decisions were not rendered within the prescribed time period and, accordingly, rule violations were found. Thus it is clear that these holdings are not applicable to the facts of this case.
In view of the foregoing, the claim lacks rule support and must, therefore, be denied.
FINDINGS: The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds and holds:
That the Carrier and the Employes involved in this dispute are respectively Carrier and Employes within the meaning of the Railway Labor Act, as approved June 21, 1934;
That this Division of the Adjustment Board has jurisdiction over the dispute involved herein; and