Carrier File No. E&F-2PBF-9


Parties: Brotherhood of Locomotive Engineers
 to and
 Dispute Southern Pacific Transportation Mines
 St. Louis Southwestern Railway Lines

 Statement
 of Claim: The employees respectfully request the personal record of
 Engineer C. Butler be expunged as per Carrier's letter of
 September 18, 1991 and that he be returned to service from
 which withheld, with full seniority rights and with full pay
 for time lost, including vacation credits, plus any and all
 expenses resulting from the investigation and dismissal from
 the first date of lost service up to the date he is allowed
 to assume service.

 Findings: The Board has. jurisdiction by reason of the
 Agreement establishing the Board therefor.
 The Claimant Engineer, C. Butler, on August 16, 1991,
 was operating the engine of Train 1LFASM-14, in such a
 manner as to cause the train to pass a red absolute signal
 at the west end of Fordyce by some 4 or 5 car lengths. The
 Claimant was suspended from service pending a formal
 investigation in connection therewith.
 As a result of the investigation held, Carrier
 concluded that he was culpable and he was dismissed from
 service as discipline therefor.
 The standard of review in cases of discipline matters
 is similar to that of an appellate board. The case is
 reviewed to first determine whether the Claimant was
 accorded the due process to which entitled under his/her
 discipline rule and (2) whether there was sufficient
 evidence adduced to support the conclusions of Carrier as to
 the Claimant's culpability of the charge or charges placed
 against'him and (3) whether the discipline imposed, in view
 of the incident and the record of handling, was
 unreasonable.
 The Claimant was not accorded the due process to which
 entitled. The dismissal was ap ealed to Su erintendent
 Tanner, as per Article wand 71, up of cto er ,
 1991. The Superintendent under date of December 1 , 1 Tff
 advised that conference thereon would _be _held on. January 2,
        1992. Article 41-8 Appeals-

                      -2- Award No. 1


"...must be filed ...to the Superintendent within sixty (60)
 ~da s of the date discipline is assessed. h~ a Superintendent
 will render written decision on the appeal within sixth d~aY s~
 of receipt. it conferenceis requested in the initial
 appeal wi7 be ranted within sixt days _and
 prior to decision _ rendere ." emphasis

Superintendent Tanner conferred and denied the claim on January 2, 1992 which established the fact that such conference date was in excess of the time limits of sixty days. The Superintendent's procedural failure to hold a conference and deny the case within said 60 days time limit validated the claim as made. Payment should have been made at the local level because the merits of the case cannot be reached.


Time limits rules are negotiated by the parties. Such time limits is the parties creation and they expect to be bound thereby. As Chairman and Neutral Member Joseph Lazar stated in Award No. 1 of PLB 3715:


"When time limitations, for the performance of an act are embodied to the Agreement, with precision, as in Rule 73 of the agreement between the parties, the parties are contractually obligated to comply with them. The Board is governed by the Memorandum of Agreement of September 6, 1984 and is confined to the interpretation of the Agreement between the parties. The Board expressly does not "have authority to change existing agreements or establish new rules."


In the circumstances of this case, the claim must be conditionally sustained but that portion of the claim reading "plus any and all expenses resulting from the investigation and dismissal, etc." or similar phrases appearing in the Statement of Claim is not sustained unless that quoted portion results from a rule in the Agreement.


The Claimant's offense and his service record indicate a strong need for a one year restriction in yard service. During such period, the Claimant should receive additional Engineer re-training.


The Claimant will, of course, be required to take a return to service physical examination, including a urinalysis test.

                              -3- Award No. 1


Award: Claim sustained as per findings.

          Order: Carrier is directed to make this Award effective within thirty (30) days of date of issuance shown below.


R. E Dean;.Employee Member M. L. Go stein, Carrier Member

Arthur T. Van Wart, Chairman

and Neutral Member