NATIONAL MEDIATION BOARD
PUBLIC LAW BOARD NO. 6198
JOHN C. FLETCHER, CHAIRMAN & NEUTRAL MEMBER
T. M. STONE, CARRIER MEMBER
DON NI HAHS, ORGANIZATION NIENIBER
The Chairman and Neutral Member, after review of the entire record, has determined that the issue before this Board is:
Public Law Board No. 6193, upon the whole record and all of the evidence, finds and holds that the Employee(sl 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.
The narties present the claim of Engineer M. D. Stadv (and the adjunct claim of Student Engineer K. L. I'dontaomery in Case No. 17 before this Board), that he was unjustly disciplined in connection with his alleged failure of a Light-Out efficiency test conducted on Train NIDHDH-08 by BNSF Officers on September 9, 1999.
According to the record, Student Engineer Montgomery, under Claimant's direct supervision and authority, was operating that westbound assignment on the Dalhart Subdivision of the BNSF Railroad (over which Carrier has trackage rights) when she failed to stop at a signal BNSF officials contend was displaying no aspect at the time. (Unknown to the three-person UP/SSW crew aboard MDHDH-03, five BNSF officers were performing a Light-Out operating efficiency test at Signal 342.3, none of whom, the Board notes, visually confirmed the aspect of that signal before Claimant's train passed it.) Nevertheless, it was determined by the testing Officers that the failure of Train NIDHDH-08 to stop at Signal 342.3 constituted a violation of General Operating Rule 9.4, and Claimant's entire crew was removed from service pending investigation.
By letter dated September 10. 1999 (BLE Exhibit 1), Claimant and Student Engineer Montgomery were properly notified under the controlling Agreement to attend a formal investigation into the events of September 9, 1999, and a hearing on the matter was held over a three-day period beginning on September 14, 1999 and ending on September 16, 1999. By letter dated September 26, 1999 (BLE Exhibit 3) and postmarked September 27, 1999 (BLE Exhibit ?), Claimant was assessed Level 3 discipline (6 days actual suspension) under Carrier's UPGRADE Policy, the propriety of which is now before this Board for full and final disposition.
The Organization has presented an unavoidable threshold issue concerning the timeliness of discipline notification in this case, which we pointedly observe was raised with Carrier prior to initial appeal on the property. By letter dated October 6, 1999, Organization Local Chairman William Hill notified Carrier Superintendent Shudak as follows:
Article 71 of the controlling ,agreement to which Local Chairman refers provides in pertinent part:
Upon careful review of the entire record and the persuasive argument presented by Local Chairman Hill, this Board is convinced that Claimant's right to systematic due process under the clear and unambiguous language of Article 71 of the controlling Agreement (further augmented and clarified on point by Item 14 above), was compromised to such an extent in this case that the discipline assessed by letter dated September 26, 1999 was rendered void crb initio the instant a belated postmark was affixed to the discipline notification. We remind Carrier that it is not privileged to "swing both ways" on the postmark issue when determining the timeliness of notices and decisions under Item 14 of the System Discipline Agreement, and neither is this Board. We direct Carrier's attention to Award 14 of this Board, wherein we unequivocally validated _its contention that, as stipulated bi agreement, "postmarks rule". We are quite content to find so in this case as well.
Based upon the above. then. %~e find the discipline at issue in this case void rrb initio as a consequence of the untimely notification, and it will not be allowed to stand. With respect to Carrier's assertion that we lack authority to make such a determination based upon the fact that remedial action for bona fide violation of Article 71 is not stipulated by agreement. we respond: nonsense. This Board does not subscribe to erroneous notions, sometimes touted as precedental authority on this point, which, when extrapolated to its logical conclusion. provides no incentive whatever for Carrier to comply with the terms of an Agreement provision when stipulated consequence or recourse for the Organization are not specifically stated. In any event, we remind Carrier that, in this instance, we are 10idi17,a discipline, not altering any provision in the applicable Collective Bargaining Agreement. Furthermore, we admonish Carrier that the signing of that Agreement, of~which Article 71 is a part, in effect consununated its commitment to _all requirements contained therein, (as opposed to only those stipulating redress for violation), and advise. not surprisingly, that this Board's sole function is to assure that that preexisting commitment, as it applies to Claimant, is honored.
On that basis-, we detemline that Claimant should never have been required to serve the discipline at bar due to the untimely handling of notification under Article 71, and as such will, by virtue of this A«ard, be made whole for any losses- he may have incurred as a result. The instant claim will be sustained without a determination on its