NATIONAL MEDIATION BOARD
PUBLIC LAW BOARD NO. 6041
JOHN C. FLETCHER, CHAIRMAN & NEUTRAL MEMBER
GENE L. SHIRE, CARRIER MEMBER
DON HAHS, EMPLOYEE MEMBER
Public Law Board No. 6041, upon the whole record and all of the evidence, finds and holds that the Employees) and the Carrier are employee and carrier within the meaning of the Railway Labor Act, as amended; and, that the Board has jurisdiction over the disputes) herein; and, that the parties to the disputes) were given due notice of the hearing thereon and did participate therein.
On April 18, 1997, the herein Claimant, Engineer R. D. Baryon, was involved in an incident at Vaughn, New Mexico wherein the engine consist he was operating allegedly occupied the North Main Track without authority. An investigation was held on the incident on June 17, 1997. Claimant was notified on July 10, 1997 that he was assessed discipline of a 90 day suspension and placed on probation for 3 years. That discipline has been appealed to this Board on a variety of grounds, both procedural and substantive.
Among the procedural defects, the Organization contends that the Superintendent violated the Time LimitAgreement when Claimant's appeal of the discipline was not denied within thirty days following the date of receipt or the appeal. The Board has examined this record with care, and concludes that this contention is correct. The Agreement requires that: ' SBA - 6041
The evidence demonstrates that Claimant's appeal was not denied within thirty days of the date it was received in the Superintendent's office. Therefore, under the Agreement "the matter [was to be] considered closed" at that level, "and settled accordingly." "Settled accordingly" cannot fairly be read to mean that Carrier can continue to deny the matter, the bottom line of its arguments here, because the matter would not be closed and would remain unsettled.
The two phrases "considered closed"and "settled accordingly" means that when the Organization "blows" the time limits it no longer has a viable appeal and the discipline assessed will not be modified. When the Carrier "blows" the time limits the discipline must be expunged and the employee must be paid, as requested in the appeal. Any other reading of the Rule would produce nonsensical results and would go contrary to a long history of consistent application of time limitrules in this industry.
The Board will direct that the appeal to the Superintendent be sustained as presented because it was not timely denied.
Carrier is directed to comply with the terms of this Award within thirty days of the date indicated below, and make ayments that may be do Claimant within that time period.