Public Law Board No. 2287, Award No. 4 (Eischen)

"Contrary to Carrier's assertions, failure to properly notify the Division Chairman is not a `technical' violation. Carrier has a serious obligation under Rule 6-A-1(b), cited above, to comply with proper notification procedures."

Public Law Board No. 2786, Award No. 9 (Franden)

"The failure to deliver the discipline notice and hearing transcript copies to the Division Chairman is not denied by the Carrier. The Carrier alleges, however, that the failure to deliver those documents to the Division Chairman constitutes only a technical violation of the agreement and was not of such a nature as to prejudice the Claimant's rights with regard to the discipline matter.

"The provision in the agreement requiring the Division Chairman to receive copies of the notice and hearing transcript is included therein in order that the Organization in its representative capacity may properly defend the Claimant and prosecute any appeal. Carrier takes the position that inasmuch as an appeal was perfected by the Organization on behalf of the Claimant there was obviously no prejudice to the Claimants rights and hence no reason to disturb the discipline in the instant case. Should we follow the Carrier's reasoning in this regard, we would in effect be amending the Rule so as to provide that a delivery to the Division Chairman of the discipline notice and hearing transcript would be necessary only in cases where the employee's appeal would be prejudiced by a failure to make that delivery. That is not what the agreement says. We believe the integrity of the agreement with regard to these procedural matters must be maintained. The right to receive the notice of discipline and the hearing transcript is a bargained for right of the Organization and to hold that the Carrier may disregard that provision and place the burden on the Claimant to show that he has been harmed by the failure of the Carrier to abide by the agreement would do an injustice to the agreement between the parties."

First Division Award No. 21807 (O'Brien)

"We are of the opinion that Rule 14 is clear, concise, and unambiguous as written and, as such we have no alternative except to apply it as written. If we should add to such clear collective agreements exceptions and conditions not bargained for we would transform our function from contract interpretation to rules making, thereby abrogating our statutory mandate. If Carrier desires to limit the applicability of Rule 14 as aforementioned, then it must do so at the bargaining table, for this Board is without jurisdiction to do so."

Second Division Award No. 4506 (McDonald), quoting from that Division Award No. 1738 (Wenke) held:

"`Under the situation existent on the Carrier it may seem extremely harsh to require payment of this claim but we can only interpret and apply the provisions of the agreement the parties have entered into. We have no equity powers to relieve from a harsh situation, nor is it our prerogative to rewrite the rules of an agreement by means of an award.'"

Fourth Division Award No. 3797 (Sickles)

"Our attention has been invited to the provisions of Article 22 which contain certain directions to provide information to the Regional Chairman and which spells out certain time requirements. There appears to have been no mutual agreement under Article 22(f).

"We have reviewed the rather extensive record, and we have considered the various factual and conceptual disagreements between the parties. We continue to return to the concepts expressed in Fourth Division Award No. 980. Based upon that authority, we will sustain the claim."

Fourth Division Award No. 980 (Ferguson), referred to in Award No. 3797 held there:

"The failure to notify the regional chairman leaves the yardmaster organization outside the investigation and contravenes the rule. While it is true that the individual yardmaster may decline to have a representative present in his behalf, he cannot deny his organization its right to be notified. The rule itself is not mandatory but the conclusion reached after conference negotiations, as spelled out by the letter of R. L. Harvey has compelling effect in instances such as the one presented here.

"Accordingly we hold that the failure to notify the yardmaster organization makes the investigative action a nullity, which this Board should set aside."

In Public Law Board No. 2145, Award No. 1 (VanWart) R.Y.A. vs. B&O R.R. Co. held:

"Failure to give a copy of the notice to the Regional General Chairman, the Board finds, is another failure of adherence to the procedural requirements of Article 22. It represents more than a technical violation of Article 22. Said Article had an important procedural purpose. As such, it was an obligation willingly assumed by Carrier. Failure of compliance makes accomplishment of such purpose impossible. It is noted that Claimant lived in Washington, Indiana while the Regional General Chairman lives in Cincinnati, Ohio. Such fact, reviewed in the light of Carrier's failure, speaks for itself.

"As pointed out in Second Division Award No. 6616 (Dolnick):

"`. . . In any event, Carrier did not notify Claimant's "duly authorized representative" of the hearing on September 20. This is admitted. The mere fact that the "duly authorized representative" was at the hearing and participated is no license to the Carrier to violate the provisions of Rule 29. Carrier may not ignore its contract obligations with impunity. . .'"

Second Division Award No. 6616 (Dolnick)

"Rule 29 provides that in discipline cases a hearing shall be promptly scheduled and that at `a reasonable time prior to the hearing employe and his duly authorized representative will be apprised of the precise charge and given reasonable opportunity to secure the presence of witnesses.' The alleged act of insubordination occurred on September 18, 1972. He was advised by letter dated September 19, 1972 that the hearing was scheduled at 2:00 P.M. the next day.

"While the hearing was promptly scheduled, it was, perhaps, too prompt. The record does not show when Claimant received the September 19 letter. A lapse of only 24 hours, if formally established, may be a `reasonable time' in some cases. Since it has not been so established here it is doubtful if it constituted a reasonable time.

"In any event, Carrier did not notify Claimant's `duly authorized representative' of the hearing on September 20. This is admitted. The mere fact that the `duly authorized representative was at the hearing and participated in the proceedings is no license to the Carrier to violate the provisions of Rule 29. Carrier may not ignore its contract obligations with impunity. And it is no valid excuse that the Carrier did not know the name of Claimant's representative. The notice of September 19, 1972 was faulty."

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."