The carrier or carriers and the employee or employees involved in this dispute are respectively carrier and employee 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.
By letter dated September 24, 1997, the Claimant was notified to attend a Hearing. The Claimant was charged with two counts of conduct unbecoming an employee for his actions on September 16, 1997. It was alleged that he had a verbal altercation with a truck driver for Trimex International and secondly, was rude and uncooperative toward CPG employees inspecting freight and providing damage reports. Following the Investigation, the Claimant was notified under date of October 30, 1997 that he had been found guilty as charged.
The Organization asserts both procedural issues and a failure of proof. It also considers the Carrier's discipline harsh and unreasonable. On the property, it maintains that the Carrier failed to provide due process and allow for a fair and impartial Investigation. It argues that there was a fatal procedural error in the Carrier's violation of time limits. On the merits, the Organization points out that the entire case lacks any probative evidence. The Carrier denies any procedural error and considers the finding of guilt substantiated by the evidence and the penalty assessed proper.
Central to this dispute and preliminary to any consideration of the merits is the time limits issue raised herein. In this instant record, the undisputed facts are that a conference was held on January 29, 1999 and the time limits for the Carrier's response were extended for 60 days. Additionally, time limits were further extended by 30 days. By letter dated August 16, 1999, the Organization notified the Director of Labor Relations that it had still not received a response and, therefore, considered "the time limits . . . to have expired." After no response from the Director of Labor Relations, the Organization's next letter dated October 8, 1999 to the Vice President Human Resources requested an answer. Form 1 Award No. 35928
TheAgreement between the parties required timely denial. While the Board does not comfortably decide issues on procedural grounds, it must do so when the record is persuasive that a time limits violation occurred. The letters of April 14, 1998, May 12, 1998, January 11, 1999 and March 24,1999 were timely sent and received. There is no evidence in this record of problems with the postal service between the parties. Until the August 16, 1999 letter asserting a time limits violation and requesting information on "when arrangements will be made to satisfy . . . these appeals, as presented in accordance with Rule 36 . . . " there existed no probative evidence of a problem. There is no response in this record to the Organization's October 19, 1999 certified letter. There is no denial in this record by the Director of Labor Relations that letters were mailed over these several independent claims; only from the Vice President Human Resources that "files . . . reflect. . . " they were denied. We are persuaded that a time limit violation occurred and therefore we may not reach the merits.
Accordingly, the Board finds Rule 36 clear. When claims are not timely denied, they must be allowed as presented. We are without power to ignore the Agreement and within this record we cannot conclude that the procedural timeliness issue lacks merit. We are clearly constrained to reach a sustaining conclusion on the procedural issue of timeliness without reaching the merits.
This Board, after consideration of the dispute identified above, hereby orders that an award favorable to the Claimant(s) be made. The Carrier is ordered to make the Award effective on or before 30 days following the postmark date the Award is transmitted to the parties.