This Division, as well as others, have adopted awards sustaining claims pursuant to an untimely discipline notice. Exemplary awards are: 

Fourth Division Award No. 4662 (Fletcher)

"As a result of an investigation held on May 8, 1987 Claimant was notified by letter dated May 19, 1987 that he was suspended for 60 days. This suspension is appealed to this Board on the merits of the matter as well as with a contention that several procedural violations occurred when this matter was being handled on the property.

"Of the several procedural issues raised by the Organization we note that Rule 6 (b) contains a sentence reading:

"`Within five (5) days after the investigation closes (the investigation is not considered closed until after the official receives approval of the department head), the proper officer shall render a decision and advise the accused in writing of the penalty imposed.'

"The last sentence in the official transcript of the May 8, 1987 investigation reads:

"`The record will show this investigation closed at 12:55 PM.'

"The decision assessing discipline was dated May 19, 1987. The interval between May 8 and May 19 obviously exceeded the five day period allowed in the Rule. Accordingly, when Carrier did not render its decision assessing discipline within the time limits provided in the Rule it forfeited its right to do so.

"In its brief and before this Board Carrier has argued that Claimant's right to appeal was not in any manner prejudiced by the delay in the assessment of discipline. The language of the time constraints provided within paragraph (b), supra, as well as those in paragraph (c), under which an employee taking an appeal must do so within 15 days, are not conditioned on whether decisions or appeals made out of time would be prejudicial. The parties that drafted the Rule did not see fit to excuse each other in non-prejudicial circumstances. We cannot do it for them.

"The claim will be sustained without consideration of the merits of the discipline."

Fourth Division Award No. 1995 (Dolnick)

"Carrier says only that the decision was rendered within the ten-day period as prescribed by Article 13 because such decision is dated August 1, 1963. The fact that Claimants did not receive copies of the decision directly from Carrier's representatives until later dates is of no importance. It is Carrier's position that the date of decision controls. That date alone, says the Carrier, determines when the decision was `rendered.'

"We do not agree with Carrier's position. If what it says could possibly be the definition of `rendered' the Carrier could have held the August 1, 1963 decision for weeks and delivered copies to Claimants even thirty days thereafter. Such a definition is not only unreasonable, but is contrary to the ordinary meaning and intent of the procedural requirements provided in Article 13.

"`Rendered' as used in this Agreement means not alone the date when the decision was made, but when it was dispatched; when it was sent to Claimants through normal available communication channels. If copies of the decision had been mailed to Claimants on August 1, 1963, and the envelopes were each postmarked with that date, the decision would have been `rendered' within the ten-day period. But since they were not so mailed, but copies were delivered in person to Claimants twelve and thirteen days after the hearing, the decision was not `rendered' within such ten-day period.

"The Agreement obligates the Carrier to render a decision within ten days of the date of the hearing. Since Carrier failed to `render' a timely decision, that decision is void and is without effect."

Fourth Division Award No. 3684 (Sickles)

"The Organization advised Carrier, on February 15, 1978 that it had violated Rule 8(e):

"`In cases where discipline is applied, the yardmaster will be advised thereof in writing within ten (10) days from the date the hearing is completed' (Underscoring supplied).

"On February 22, 1978 Carrier replied, stating that Claimant was notified `....verbally via the telephone on February 10, 1978 and letter was mailed...on that day....' It was not until November 13, 1978 that Carrier conceded that the letter was `dictated and typed' on February 10, 1978 and `handled for mailing in the normal course of business.' It was then stated that the letter was placed in the outgoing mail and forwarded for final processing in the mail room and:

"`Inasmuch as February 10 was a Friday and the letter arrived in the mail room late that afternoon, it was not postmarked until Monday, February 13, 1978. Thus, the requirements of Rule 8(e) were satisfied.'

"Claimant argues that the written notification must be in the hands of the employee not later than the 10th day and cites authority to that effect. But we find it unnecessary to comment on that theory. The fact remains that Rule 8(e) was violated in any event. It is rather unimportant when the letter was dictated and typed. The Rule mandates that the Employee be advised - in writing -within ten (10) days and at the very least that requires that the notification be placed into the U. S. Mail within that time frame."

Fourth Division Award No. 3686 (Sickles)

"Carrier asserts (despite the fact that a decision will be rendered within ten (10) days) that the language is discretionary and not mandatory, and cites Third Division Award 16172 among others.

"Claimant relies upon (among others) Third Division Award 19974 and 4th Division Award 1995 which concluded that a decision which is not rendered in a timely fashion is `....void and is without effect.'

"Surely it is always preferred to base an Award upon the particular merits of a dispute. But we are always mindful of the fact that we are not empowered to amend or alter agreements. Rather, we are constituted to interpret and enforce them. The various Carriers do not hesitate to urge that claims be dismissed when time limits are ignored or overlooked. At the same time, we should not hesitate in denouncing a Carrier's failure to comply with a mandatory time limit to which it agreed. Award 3603's determination to ignore contractual time limits is, in our view, a substitution of the Referee's prediliction (sic) for the agreement of the parties.

"We will sustain the claim."

The Third Division has a long list of awards dealing with the subject and to quote from this listing would necessitate lengthening this Submission to some hundred pages or more. We quote from just a few as follows:

Third Division Award No. 21675 (Blackwell)

"In assessing the foregoing pro and con of the Organization's position that the claim must be sustained on the basis of the Carrier's violation of Rule 56 A, it is noted that, although the facts in the authorities cited by the Carrier and not parallel to the instant case, the reasoning in the authorities reflect an approach which would have to be considered as supportive of the Carrier position. It is also noted that one of the Organization's cited authorities, Award No. 16030, is consistent with the Carrier's argument in that this Award involved a disciplinary matter which the Carrier concedes is subject to the time limit provisions of Rule 56 A. In the final analysis, however, Award No. 19796 is the Award which must be given precedential effect, because this Award is not only squarely in point with the facts of the instant dispute, but it also reflects the traditional view that time limit provisions are to be applied as written by the parties and that any deviation from this principle would amount to rewriting the parties' Agreement, which no third party is empowered to do. Two time limit rules are involved in this case, the seven (7) day limit on requesting a hearing under Rule 58 and the twenty (20) day limit on the Carrier's rendering a posthearing decision under Rule 56 A. Had the Carrier asserted the time limit provisions of Rule 58, instead of waiving such provisions as previously indicated, there can be no question that the Carrier would have been entitled to have the claim disposed of under that Rule. By the same token, there can now be no question that, in view of the Carrier's failure to comply with the time limit provisions of Rule 56 A, the Organization is entitled to have the claim disposed of under that Rule. Finally, it is additionally noted that if the Carrier's argument were accepted as correct, and it were held to be exempt from the Rule 56 A time limits in an unjust treatment case, the Carrier would have an indefinite period of time within which to render a decision after hearing in such a case. Such a result cannot be the parties' intention regarding the rule, because it would frustrate an employe's right effectively to protest an adverse decision through the grievance procedure. Accordingly, it is concluded that the Carrier violated the time limits in Rule 56 A.

"In view of the foregoing, the claim will be sustained on the basis of the Carrier's violation of Rule 56 A and the merits will not be reached."

Third Division Award No. 21996 (Sickles)

"Quite recently, this Division adopted Award 21873 which cited, with favor, Award 21675. There it was determined that:

"`...time limit provisions are to be applied as written by the parties and that any deviation from this principle would amount to rewriting the parties' Agreement, which no third party is empowered to do.'

"When it agreed to a rule which stated that a '...Decision will be rendered...' (underscoring supplied), Carrier assumed a mandatory obligation. Employers are quick to assert that Employes are without a remedy if they fail to comply with a contractual time limit. Accordingly, we sustain the claim."

Fourth Division Award No. 4969 (Zusman)

"This Board does not agree and finds itself unable to advance to the merits. The parties are well informed and knowledgeable that this Board is severely constrained to reach determination on issues and evidence within the controlling language of the Agreement. Rule 19(a) limits the Carrier to rendering a disciplinary decision 'within ten (10) calendar days after completion of hearing.' Rule 19(b) operates in conjunction with Rule 19(a). Herein, the parties negotiated Rule 19(b) which states that:

'When discipline is administered, copy of the discipline notice and transcript will be furnished the employe and the General Chairman.'

"The record at bar conclusively proves that the Carrier failed to submit to the General Chairman a copy of the transcript or discipline notice in a timely manner. A transcript and discipline notice was provided. It is undisputed that the Organization:

'. . .did not receive a copy of the transcript of the investigation until right at 60 days, and did not receive a discipline notice until after the 60 days. . .'

"This Board has fully reviewed the record and is always constrained by the language of the Rule negotiated by the parties. Carrier's defense on property was that:

'Rule 19 only requires that a copy of the transcript be furnished; it does not set any time limits in which this transcript is to be furnished.'

"In the strong arguments made before this Board and in its Ex Parte Submission the Carrier maintains that no time limit exists, that the issue was 'promptly cleared up,' that the Claimant's appeal was not impeded or jeopardized resulting in a fatal flaw, and that the Claimant was proven guilty.

"The Board notes that there is not even a dispute before us on the Claimant's guilt, but only upon the procedural issues surrounding Rule 19. This Board must follow the language of the Agreement. The parties agreed that the discipline notice and transcript would be furnished the General Chairman 'When discipline is administered' (emphasis added). The fact that a specific time frame of five, ten or some other number of days is not specified does not indicate that 'no time limit exists.' The fact that the issue was resolved on the property prior to the submission to this Board or that it may not have affected the appeal does not satisfy the Rule. Nor does it matter if the Claimant is guilty, as the procedural issues must be resolved before this Board has the right to reach the merits. Procedurally, this Board cannot negate its function to apply the negotiated Rule to the facts. The Carrier violated the Rule in waiting more than two months to furnish the transcript and discipline notice to the General Chairman.

"The Board desires to reach the merits of the case, but finds it impossible to do so. We have read the Award support presented as to finding a procedural violation while permitting discipline to hold (Public Law Board No. 1459, Award 144; Public Law Board No. 2779, Award 95). In the facts and circumstances of this case, the discipline cannot hold. The claim is sustained. Claimant is to be reinstated as a Yardmaster and made whole as per Rule 19(d)."

Third Division Award No. 29987 (Simmelkjaer)

"Where the parties negotiate an Agreement incorporating procedural safeguards, the toleration of procedural irregularities undermines their express intent. Unless strict adherence to the time requirements is reinforced as expected behavior, minor deviations could become substantial breaches and thus reduce these procedural strictures to a nullity. The fact of Claimant's admission does not detract from the finding that absent procedural due process, substantive due process cannot be attained. For example, in the criminal law context failure to advise a suspect of his/her Miranda rights would exclude any confession obtained thereafter. Moreover, as noted in Third Division Award 21996:

'When it agreed to a rule which stated that a '. . .Decision will be rendered. . .' (underscoring supplied), Carrier assumed a mandatory obligation. Employers are quick to assert that Employes are without a remedy if they fail to comply with a contractual time limit. Accordingly, we sustain the claim.'

"As in prior Awards where a balancing test has been utilized to ascertain the extent to which procedural violations should affect the case on the merits, this Board finds the weight of the evidence supports the Organization's claim.

"Therefore, we find the unambiguous and mandatory language of Rule 19(a) precludes consideration of the merits."

Fourth Division Award No. 4990 (Zusman)

"The central procedural issue is the applicability of Article 22(b) which states:

"'A decision shall be rendered within twenty (20) days after completion of investigation, with copy to the Regional Chairman and charged employee.'

"Although this Board continues its reluctance to resolve any discipline issue on procedural grounds, it must uphold the negotiated Agreement. Herein, the Carrier does not deny its failure to timely comply with Article 22(b). Instead the Carrier makes several arguments. First, that Fourth Division Award 4712 found that Rule 22(b) did not specifically mandate a time requirement for providing a transcript. Second, that until the Investigation is transcribed, it is not complete. Third, that any delay to the Claimant in obtaining either the decision or transcript did not prejudice the appeal of discipline. Finally, that Fourth Division Award 4786 held that although the Regional Chairman should have received the notice, the violation was not sufficient to overturn discipline where, as here, the General Chairman received notice.

"This issue has unfortunately been visited previously. This Board reviewed all Awards submitted by the parties (including First Division Award 15579, 13845 and Second Division Award 2466). The Carrier erred in relying on Fourth Division Award 4712 which does not refer to Article 22(b) but Rule 12(b). In this instance, Article 22(b) supra, is clear. At the end of the Investigation, the Carrier was directly put on notice by the General Chairman that the transcript and decision were to be sent to the Regional Chairman as per Article 22. This was not done.

"The time limits of the Agreement are set by the negotiating parties and this Board lacks authority to put them aside. We have held that repeatedly (Public Law Board No. 3975, Award 1; Fourth Division Awards 4211, 4278). As stated in Fourth Division Award 4662:

"'In its brief and before this Board Carrier has argued that Claimant's right to appeal was not in any manner prejudiced by the delay in the assessment of discipline. The language of the time constraints provided within paragraph (b), supra, as well as those in paragraph (c), under which an employee taking an appeal must do so within 15 days, are not conditioned on whether decisions or appeals made out of time would be prejudicial. The parties that drafted the Rule did not see fit to excuse each other in non-prejudicial circumstances. We cannot do it for them.'

"The claim will be sustained without consideration of the merits of the discipline.

"As these Awards are between the same parties and as we find no reason to find fault with their logic, the Board applies the doctrine of res judicata."