PUBLIC LAW BOARD NO. 6552
BROTHERHOOD OF MAINTENANCE )
OF WAY EMPLOYES )
AWARD NO. 1
And ) CASE NO. 1
SOO LINE RAILROAD COMPANY )
STATEMENT OF CLAIM:
"Claim of the System Committee of the Brotherhood that:
(1) The dismissal of Foreman James A. Quilling for alleged theft in
connection with expense reports filed from 1992 through 1998 was
without just and sufficient cause, based on unproven charges and in
violation of the Agreement (System File D928-8.99/8-00393).
(2) As a consequence of the violation referred to in Part (1) above,
Foreman James A. Quilting shall now be reinstated to service with
seniority and all other rights unimpaired and compensated for all
wage loss suffered."
FINDINGS:
Public Law Board No. 6552, upon the whole record and all the evidence,
finds that the parties herein are Carrier and Employes within the meaning of the
Railway Labor Act, as amended; that the Board has jurisdiction over the dispute
herein; and that the parties to the dispute were given due notice of the hearing and
did participate therein.
Claimant, a gang foreman on a crossing crew, was first hired by the Carrier
in 1977. By letter dated August 5, 1999, he was removed from service pending
formal investigation for alleged falsification of expense accounts and time sheets. A
subsequent notice detailed the allegations more specifically, charging the Claimant
with alleged falsification and abuse of motel lodging, camper receipts, associated
meal expenses and other irregularities claimed on expense accounts submitted by
the Claimant, and alleged falsification of time sheets for various months during the
period 1991 through 1998.
An investigation was conducted on August 31, September 1 and 2,1999.
Because there was a voluminous record, Carrier twice requested extensions of time
to render a decision. These requests were granted by the General Chairman. There
is no dispute that the Carrier's decision was to be rendered on October 1, 1999.
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By letter dated October 1, 1999, Carrier dismissed Claimant from service.
However, the letter was not mailed until October 4, 1999, which was outside the
agreed upon extension of time.
Rule 20 (b) states that the Carrier's decision "shall be rendered within fifteen
(15) days from the date the hearing is completed."
The Organization contends that Carrier did not render its decision until
three days after the agreed upon date. In the Organization's view, the failure to
render a decision in a timely manner requires that the claim be sustained as
presented. Carrier, on the other hand, argues that the decision was timely
"rendered" in that it was dated October 1, 1999 as agreed to by the parties. Carrier
maintains that there was no agreement that the decision had to be received or
postmarked by any certain date and therefore there was no violation of the
Agreement.
The question of when a decision has been "rendered" has been addressed
before. In First Division Award 16366 (Daugherty), the Board held:
His case here rests solely on the contention that notice of carrier's decision
did not conform to the time limit provisions of Article 13(a) of the parties'
controlling agreement, which states that the decision must be `rendered in
writing within ten days or case will be considered closed.'
The record shows that the investigation of the charges against Sinnott was
held on February 19,1949, and a letter apprising him of carrier's decision
was written and mailed at the McNary post office by Manager Willis at
about 5 p.m. on March 1, 1949, which was the tenth day after the day of the
investigation. However, the letter was postmarked March 2,1949 and was
not received by Sinnott until the following day.
Our decision here must necessarily rest on our interpretation of the abovequoted words of Article 13(a) as applied to the facts of the case. It appears
that in writing this rule the parties intended to provide in general for fair
hearings and for just discipline and prompt decisions in cases of admitted or
proved violation of carrier rules. The facts of the instant case do not
establish any substantial disregard of this general intent. Yet it does appear
that there was at least a technical violation. In respect to the words used in
Article 13(a), we think `rendered' means `sent.' We do not deem that
`rendered' means the making of the decision or even just the writing thereof
to the employe involved. The written decision must be dispatched.
On the other hand, we do not think that `rendered' means `delivered' or
`received' by the employe. It is clear that, just as a decision once written
could be held indefinitely in the hands of the carrier and not dispatched, so a
dispatched decision could be indefinitely delayed in actual receipt by or
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delivery to the employee; e.g., if he were away on vacation or for other
reasons.
Our question thus boils down to whether the written decision was sent to
Sinnott in conformance with Article 13(a)'s time limits. On this issue, we
deem the date of postmark to be the only conclusive evidence. And on this
evidence the carrier may properly be judged to have delayed at least one day
beyond the specified time limit.
It is true that the delay is not shown to have been serious. It is also true that
ten days is an arbitrary length of time. But, however arbitrary, it was fixed
by the parties. And it is not within the authority or competence of this Board
to substitute for it some other arbitrary number of days. We think a
sustaining award is indicated.
In Public Law Board No. 1844, Award 79 (Eischen), the Board reached the
same conclusion on similar facts. The Board held:
The record persuasively establishes that the Notice of Discipline was typed on
Thursday, April 12, 1979, within the ten day limit. But the decision was not
mailed until Monday, April 16, 1979, apparently because of mail backlog in
Carrier's office due to the Easter holidays. On those facts, the decision was
`rendered' for purposes of the ten day requirements of Rule 19(a) when it
was placed in the mail by Carrier .... The postage meter date on the envelope
in which Carrier mailed the decision is April 16, 1979. Clearly, this is more
than ten days from the completion of the hearing on April 4, 1979. We have
on other occasions held that the time limits of Rule 19 are meaningful
provisions which must be strictly enforced .... We shall sustain the claim due
to Carrier's violation of Rule 19(a), without reaching the merits.
We see no reason to depart from the persuasive logic set forth above. The
Carrier's decision in this case was rendered on October 4, 1999, three days beyond
the parties' agreed upon date. It was untimely. There is ample precedent favoring
the position of the Organization that satisfaction of fixed, agreed upon time
limitations is mandatory for both parties. Third Division Awards 21996 (Sickles);
23553 (Dennis); 24623(Silagi); Public Law Board No. 1844, Award No. 62 (Eischen).
The Board has no authority to revise agreements on behalf of one party when time
limits have not been met. Carrier had the option of requesting another extension of
time in this case and obtaining the concurrence of the Organization. By failing to do
so, Carrier proceeded at its peril.
The Board understands that considerable time and effort were expended on
the merits of this case. However, we must sustain the claim based on the procedural
deficiency in the Carrier's handling without reaching the merits.
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AWARD
Claim sustained.
ANN S. KENIS, Neutral Member
X/®ry~,z
Carrier Member O ' anon Member
M.R. Kluska D. D.rtholomay
Dated November 1, 2002.
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