At the relevant time, Claimant was a Track Foreman with 29 years of service. On December 6, 1988, Claimant and a two man crew were assigned to Yard Sweeper J151 to clean Track 11-B in the Coke Plant. Claimant assigned one of the crew members to operate the yard sweeper and another to perform manual cleaning.
On that date, a collision occurred between the yard sweeper and an ·engine. At the time, Claimant was not operating the sweeper. However, Claimant and the two employees were held out of service effective December 6, 1988, pending the results of a drug screen. The test results were negative and Claimant and the crew members were paid for the three day period they were withheld from service.
By letter dated December 27, 1988, Claimant and the crew members were notified to attend a hearing on January 4, 1989, (which hearing was eventually held on January 18, 1989). Claimant and the Machine operator were assessed 25 demerits for negligence. By letter dated March 29, 1989, the Carrier rescinded the 25 demerits given to the Machine Operator. Claimant's discipline remained and this claim followed.
The organization contends that the hearing was not held in a timely fashion. We agree.
Claimant was held out of service on December 6, 1988, notice of the Investigation issued December 27, 1988, setting a hearing for January 4, 1989, and the hearing was ultimately held January 18, 1989. Because Claimant was held out of service on December 6, 1988, and was not even charged until December 27, 1988, initially setting the hearing for January 4, 1989, the Carrier did not comply with the ten day time limit for holding the hearing from the time Claimant was held out of service.
The Carrier argues that withholding Claimant from service was for purpose of administering the drug screen and, due to the negative result and because Claimant was compensated for the three days he was withheld, the withholding from service had nothing to do with the discipline. Therefore, according to the Carrier, the "held out of service" clause in Rule 57(a) is not applicable. Form 1 Award No. 30159
The Carrier's argument is not persuasive. The withholding from service and the charges forming the basis of the discipline all arose from the same incident on December 6, 1988. Moreover, there is nothing in Rule 57(a) which makes the distinction the Carrier seeks so as to carve out exceptions from the running of the ten day time limit for holding hearings when employees are withheld from service pending the outcome of drug screens and then successfully pass those screens but are then later charged with other misconduct arising out of the same incident. The language is clear and mandatory - "The hearing mill be held within ten days of the date when charged with the offense or held out of service" [emphasis added]. Claimant was held out of service on December 6, 1988. By operation of the clear language of the Rule, the clock began to run on December 6, 1988. Under the present circumstances, the reason Claimant was withheld from service - whether such was by choice of the Carrier or by requirement - is therefore irrelevant as a matter of contract to the operation of Rule 57(a). This Board does not have the authority to insert exceptions into the language when no exceptions are provided by the parties.
Taken to its logical extent, the Carrier's argument would allow it to withhold an employee from service for one reason and issue a notice of Investigation many weeks (or months) later for another reason stemming from the same incident claiming the Investigation was for misconduct unrelated to the withholding from service. The carrier could therefore easily avoid operation of the ten day requirement for holding hearings. That kind of logic would read the phrase "or held out of service" out of Rule 57 (a) and would make the time limits in the Rule contingent upon how the Carrier chooses to phrase the charges. The phrase "held out of service" then becomes surplusage. A fundamental rule of contract construction requires avoiding constructions which render negotiated language meaningless.
Rule 57(a) was not followed. The discipline shall therefore be rescinded. Form 1 Award No. 30159