"Claimant was charged with several rule violations including Operating Rule 501, and CSX Transportation Rules 40, 920, and 922 in connection with charges covering dishonesty, making false statements concerning facts under investigation, and failure to immediately report an on-the-job injury. The hearing into the charges took place on October 31, 1991. Subsequent to the investigation, the Carrier dismissed the Claimant from service on November 18, 1991.

This Board has reviewed the file and we discover that Rule 39 states in Section 2 that:

...A decision in writing will be rendered within ten (10) calendar days from the close of the hearing. A copy of the transcript of the evidence taken at the hearing, and a copy of the decision, will be furnished the employee affected and his representative.

In this case. the decision in writing was not issued the Carrier until eighteen dues after the hearing. Since the rules require that a written decision be issued within ten days, the procedural rights of the Claimant were seriously violated.

This Board hereby orders that the Claimant be reinstated to service upon successful completion of a return-to-duty physical and he be compensated for any time lost from November 7, 1991 which is ten days following the date that Claimant was approved to return to duty with no restriction following the examination by his personal physician.

Additionally, Mr. Dudley's personal record shall be cleared of any reference to this incident.

"AWARD

Claim sustained in part in accordance with the above findings."

Juxtaposed to the THIRTY-THREE (33) awards cited above, which decided disputes involving specific time limits for a carrier's decision of discipline (seven of which involved this Carrier) which found them to be MANDATORY, is the Majority's findings in this instance. We are inexorably led to conclude that there is something radically wrong with this picture, i.e., Award 29471.

However, support for the organization's position does not stop at decisions involving this Carrier's disciplinary decisions rendered outside the contractually mandated time limits. Support is also found in decisions involving this Carrier's violations of the contractually mandated time limits for providing notice of an investigation, holding investigations and providing transcripts of investigations. For example:

The above-cited awards involving this Carrier (and/or its former properties) sustained the mandatory time limits and the position of the Employes.

Unfortunately, the Majority's erroneous findings did not stop at illegally altering the language of the Agreement. The Majority compounded its error by applying principles of "common law" while citing Atlantic Coast Line v. BRAC, 210 F.2d 812 (4th Cir. 1954) with favor. However, "common law" predates industrial labor. relations by some five or six hundred years and has no valid application to disputes of this nature. Notwithstanding, the Majority applied them to this case in the absence of a specific penalty provision or express remedy within the Agreement. In this connection, we invite particular attention to the Labor Member's Dissent to Award 22194, which held:

"In Union Pacific vs. Price, 360 U.S. 601 (1959), the Court held that an employe who had received an adverse decision in pursuing his claim before the Board could not maintain a common-law action for damages on the same issue.

In Pennsylvania Railroad vs. Day, 360 U.S. 548 (1959), the Court held that a retired employe could not maintain action in federal court relative to time claims filed during his active work period and that the Adjustment Board has exclusive primary jurisdiction

°In Brotherhood of Locomotive Engineers. et al. vs. Louisville and Nashville, 373 U.S. 33 (1963), the Court held that the union could not strike to enforce an Adjustment Board award.

In Gunther vs. San Diego & Arizona Eastern, 382 U.S. 257 (1965), enforcing First Division Award 17646 (and Interpretation) wherein the Carrier contended (1) that no rule required the appointment of a medical board and (2) that the decision of its chief surgeon was not subject to review, the Supreme Court said, as to (1) above:

'The courts below were also of the opinion that the Board went beyond its jurisdiction in appointing a medical board of three physicians to decide for it the question of fact relating to petitioner's physical qualifications to act as an engineer. We do not agree. The Adjustment Board, of course, is not limited to common-law rules of evidence in obtaining information ....'

and as to (2) above:

'The District Court, whose opinion was affirmed by the Court of Appeals, however, refused to accept the Board's interpretation of this contract. Paying strict attention only to the bare words of the contract and invoking old common-law rules for the interpretation of private employment contracts, the District Court found nothing in the agreement restricting the railroad's right to remove its employees for physical disability upon the good-faith findings of disability by its own physicians. Certainly it cannot be said that the Board's interpretation was wholly baseless and completely without reason. We hold that the District Court and the Court of Appeals as well went beyond their province in rejecting the Adjustment Board's interpretation of this railroad collective bargaining agreement. As hereafter pointed out Congress, in the Railway Labor Act, invested the Adjustment Board with the broad power to arbitrate grievances and

"plainly intended that interpretation of these controversial provisions should be submitted for the decision of railroad men, both workers and management, acting on the Adjustment Board with their long experience and accepted expertise in this field.'

Andrews vs. Louisville and Nashville, 406 U.S. 420 (1972), held that the Adjustment Board is the exclusive forum for redress, overruling Moore vs. Illinois central, 312 U.S. 630 (1941) which held that a railroad employe alleging wrongful discharge had an option to treat the discharge as final and file a common-law action for damages, or pursue the dispute before the National Railroad Adjustment Board.

The Court, in construing the Railway Labor Act provisions establishing the Board, relied in part upon testimony before Congressional committees which revealed the powers to be granted the National Board. It is clear that the Board was to resolve disputes involving interpretation of the collective bargaining agre resolution of disputes included a remedy. One need not cite authority to know that issuance of declarations of rule violations would be an extreme exercise in futility without Providing an appropriate remedy.