Date ojHearing - October 28, 1998

Date o f Award -January 29, 1999

Claim of Panhandle Subdivision Engineer C. D. Doss for all time lost while being withheld from service for the BNSF Railway Company while serving said dismissal and including pay for time lost attending the formal investigation and that Engineer Doss' record be expunged of any mention of the incident of March 22, 1997.

Public Law Boatel 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 March 22, 1997, the herein Claimant, Engineer C. D. Doss, was operating a train between Wellington, Kansas and Amarillo, Texas when it passed a red absolute signal at Waynoka, Oklahoma. Claimant was cited to attend an investigation, that commenced on July 24, 1997 and concluded on July 31, 1997. On August 26, 1997, Claimant was advised that he was dismissed from service. While this matter was pending on appeal Carrier offered to reinstate Claimant on a leniency basis. This was accepted on August 26, 1998 with the understanding that Claimant would be allowed to continue to pursue his claim for payment for time lost.

Among the issues appealed was a contention that Carrier failed to respond to the appeal to the Division Superintendent within sixty days as called for by the Agreement. The Organization contends that this defect requires that the claim be allowed as presented. The Carrier contends that it does not. The rule involved states:

6. If there is a failure to comply with the time limits provisions of the agreement by either party, the matter shall be considered closed, and settled accordingly, but this shall not be considered precedent or waiver of the contentions of either party for the handling of other similar discipline cases.

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 Agreement would result in nonsensical results and would go contrary to a long history of consistent application of time limit rules in this industry.

John F cher, Chairman & Neutral Member

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