NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 27209
THIRD DIVISION Docket No. TD-27166
The Third Division consisted of the regular members and in
addition Referee Herbert L. Marx, Jr. when award was rendered.
(American Train Dispatchers Association
PARTIES TO DISPUTE:
(Duluth, Missabe and Iron Range Railway Company
STATEMENT OF CLAIM: "Mr. Kennedy shall have his record cleared of any and all
charges which may have resulted from the incident which
occurred on June 26, 1985,...and he shall be compensated for any and all lost
wages."
FINDINGS:
The Third Division of the Adjustment Board upon the whole record and
all the evidence, finds that:
The carrier or carriers and the employe or employes involved in this
dispute are respectively carrier and employes within the meaning of the
Railway Labor Act as approved June 21, 1934.
This Division of the Adjustment Board has jurisdiction over the
dispute involved herein.
Parties to said dispute waived right of appearance at hearing thereon.
On June 26, 1985, a near collision occurred based on a train passing
two successive red signals and coming close to another train. Without question, knowledge of this oc
On July 2, 1985, the Claimant, a Train Dispatcher, was notified to be
present "as a witness" (not as a principal) in a formal investigation concerning "the failure of the
through the Automatic Interlocking at Shelton on June 26, 1985." On July 11,
the Claimant was notified that this investigation was being postponed. On the
same date the Claimant was notified of a hearing scheduled for July 18, 1985
"to develop the facts and determine responsibility" for failure of the train
to "operate properly and safely." The hearing was held on July 18, and as a
result the Claimant was given a disciplinary suspension based on the Carrier's
determination of his share of responsibility for the incident.
Rule 27, Discipline, reads in pertinent part as follows:
"(a) A train dispatcher shall not be disciplined, demoted or dismissed without proper
hearing as provided in this Rule 27. Suspension
from service pending a hearing will not be deemed a
violation of this principle.
Form 1 Award No. 27209
Page 2 Docket No. TD-27166
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HEARINGS
(b) A train dispatcher charged with, or
involved in, an offense which might result in
discipline, demotion, or dismissal from the service
of the Railway Company, shall within ten days of
Carrier's knowledge of the occurrence, be advised
in writing of the precise charge against him. Such
hearing shall be conducted by the Superintendent or
his designated representative within ten days from
the date of the notice, or within ten days after
the train dispatcher has been suspended from ser
vice, whichever date shall be the earliest . . . .
July 11 was obviously more than ten days following the "occurrence"
and was also more than ten days beyond the Carrier's "knowledge of the occurrence" (i.e., the near m
11 notification to the Claimant as a principal (rather than as a "witness") by
stating that it was not until July 2 or 3 that there was an opportunity to
review the tapes of the interchange between the Claimant and the train crew
and that it was on this "knowledge" that the revised investigation notice was
issued (within 10 days of July 2 or 3).
Rule 27 must be interpreted as written, with the understanding that
the parties have mutually agreed to be bound by its terms. There are numerous
instances where the notice of hearing limitation goes beyond ten days from the
"occurrence" because the Carrier did not have "knowledge of the occurrence
(emphasis added)" until some later time. Here, however, the Carrier would
extend this beyond the occurrence itself to some point when it developed
additional information based on its investigation of the already known
"occurrence."
Rule 27(b) simply does not provide for this. The "occurrence," as
noted above, was on June 26 and the Carrier had immediate knowledge thereof.
Rule 27(a) provides that a Train Dispatcher may not be disciplined
"without proper hearing as provided in this Rule 27." Such "proper hearing"
clearly applies to conformance with the requirements of Rule 27(b). Among
many instances holding to the same effect is Third Division Award 19275
stating:
"The record is clear that the investigation
was not conducted within the 10-day time limitation
of Article IX(b). There is no showing that the
time limit was extended by Agreement between the
Carrier and the dispatcher or his representative,
or that the Carrier attempted to obtain such an
Agreement. The Board must apply the Agreement as
written, and as the procedural requirements were
clearly violated by the Carrier, we will sustain
Form 1 Award No. 27209
Page 3 Docket No. TD-27166
88-3-86-3-368
the claim on this basis, without passing upon the
question as to the responsibility on the part of
the claimant for the accident involved. See Awards
17145, 17081, 14497, 14496, 8714."
An earlier instance of the same reasoning is Third Division Award
6446 stating as follows:
"Express time limitations in grievance procedure have been many times held to be enforceable;
primarily because the parties by including them in
their agreements intended thereby to expedite the
orderly handling of claims. Application of such
rules is sometimes harsh but in the interests of
efficient, proper procedure they must be applied.
We are not granted any discretion to extend such
statutes of limitation as the parties have fixed on
themselves. We can only apply their own rules. It
follows that in so doing we are precluded from
judging the merits of the basic dispute. The rule
having been violated the claim must be sustained."
Awards cited by the Carrier to the contrary appear to be instances
where the Carrier had belated knowledge of the "occurrence" itself and not to
information developed following knowledge of the incident.
With this conclusion, examination of other procedural matters or the
merits of the case is unnecessary.
A W A R D
Claim sustained.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest:
ancy J. D -Executive Secret awry
Dated at Chicago, Illinois, this 20th day of July 1988.