COMPLIANCE WITH THE AGREEMENT (25)

Public Law Board No. 3975, Award No. 1 (Zusman)

"`ARTICLE 22 DISCIPLINE

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

"The Organization maintained in its May 3rd letter that it had never been `advised in writing of any discipline' assessed against the Claimant. In its response of June 1, 1984 the Carrier acknowledged both the `clerical oversight' and its correction of the oversight by receipt of a certified copy on May 9, 1984.

"Focusing on the central issue Article 22(b), the Organization contends that the Agreement mandates a `copy to the Regional Chairman' within twenty (20) days after completion of the investigation. It notes that the copy was furnished, only after a procedural claim was filed, on these same grounds, and sixty-three (63) days after the investigation. The Organization further points out that awards and previously settled claims on this same property, over this same issue, have already so ruled, raising the issue of stare decisis. (Emphasis in original)

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"This Board has carefully reviewed the central issue at bar and the numerous awards cited by both parties. The Agreement states a `copy' must be sent. The record indicates the Carrier has failed to `copy' the Regional Chairman within the twenty (20) days. This Board is being asked to set aside discipline for a major offense on a technical detail. While it is always reluctant to do so, it is not constituted to add intent to an agreement between the parties. It must rule therefore, with the Organization and in consistency with past Awards and settlements on this same property (Fourth Division Award 4211 and the settlement letter of September 6, 1979; case 2-YG-156).

"As such, this Board finds no Agreement support for the position of the Carrier that a verbal notification is an acceptable substitute for a written copy. The Claimant was denied his rights under the Agreement. The fact that the knowledge of the discipline was obtained by the Regional Chairman from other sources is not controlling. It is a well established principle of contract interpretation that Agreement provisions which are clear and unambiguous must be complied with by both parties. In the instant case, the Carrier failed in its obligations to provide the Regional Chairman with the discipline decision in written form. We are therefore constrained to uphold the Agreement. We have no authority nor discretion to redefine, reconstruct, or construe the clear and unambiguous language of Article 22(b) which calls for a `copy' into some other meaning. The Agreement was violated by a procedural oversight.

"In view of the above, we find Carrier in error and direct the Claimant be made whole for actual wage loss at his pro rata rate of pay on these grounds alone. Petitioner raised other procedural issues during the appeal on property which, though relevant, will not be discussed in view of our primary determination and aforementioned conclusions. In violating Rule 22(b) the Carrier has made a critical error in procedure and as such the Claim must be sustained."

"In Fourth Division Award No. 4211 (Scheinman) citing Fourth Division Award Nos. 4124, 3234 and 3097, the Majority there held as follows:

"After careful review of the record evidence and cited awards, we are convinced that the claim must be sustained on procedural grounds alone. This is so for a number of reasons.

"First, the Organization timely raised the allegation that its Regional Chairman had not received a copy of the discipline notice. In so doing, the Organization shifted the burden to Carrier to prove that the notice was timely sent (see this Board's Award 4124). Normally such proof consists of a copy of a registered mail receipt. Here, no such proof exists. Thus, we must conclude that a copy of the discipline notice was not mailed to the Regional Chairman, as required by Article 22(b) of the Agreement.

"Our finding on this issue is consistent with a long line of precedent which far outweighs cases cited by Carrier (see for example, this Board's Award Nos. 3234 and 3097). In addition we have carefully read the Dissent in Award No. 3850. The issues contained in that Dissent are not present in the instant dispute. There, the Local Chairman had been verbally advised as to the date a hearing would be scheduled. In addition, in that case, Claimant elected to waive his right to representation. Here no such verbal advise or waiver exists. Thus, we do not believe that the Dissent in Award No. 3850 is applicable to the facts of this claim.

"Second, we note that this issue is concerned with the Organization's receipt of a copy of the notice of discipline. We believe that the Organization has as much right to learn of Carrier's decision after the investigation as to the holding of the investigation itself. The Organization must be given all documents upon which it can frame a proper appeal. Clearly, one such document is the notice of discipline. Thus, Carrier's failure to provide the Organization with such notice represents a significant procedural error. Moreover, it clearly violates Article 22(b) of the Agreement. Thus, we find that the claim must be sustained on this ground alone."

"In Fourth Division Award No. 4278 (Zusman) citing Fourth Division Award Nos. 4221, 3850, 3797, 980, and Third Division Award No. 24891, the Majority there held as follows:

"In further appeal on property by letter of April 14, 1983 the Organization makes note that `the decision of no discipline was sent...only after a claim was made and some 43 days after the investigations.'

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"This Board believes that Award 24891 is direct and germane to this issue. It does not agree with the interpretation of recent Award 4221 which suggest that failure to provide a transcript and decision is not a substantive breach `as contemplated by the parties.' We have carefully read the Dissent to Fourth Division Award No. 4221 and are in agreement that Award 4221 runs counter to both the function of this Board (when language is clear and unequivocal) and the past awards on this issue between the same parties (Fourth Division Awards 4221, 3850, 3797, 980).

"It is the determination of this Board that the Carrier has violated the Agreement in its failure to provide the stenographic report and the copy of the decision to the Regional Chairman."

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."

The issue of Carrier's failing to notify the proper representatives when required to do so by the Agreement has been settled between these same parties in Public Law Board No. 2287, Award No. 1 (Eischen) where we read as follows:

"Carrier's labor relations professionals are knowledgeable regarding the requirements of the Agreement even though front-line supervision in this case was not. The Manager-Labor Relations attempted belatedly to cure the defect in handling by the immediate supervisor, but by that time it was too late. The Agreement states in unequivocal terms that the dual claim must be filed with the immediate supervisor who must respond to it in writing. Gilmore was the immediate superior, the dual claim was filed with him and his failure to answer that claim is fatal. Belated denials by other than the immediate superior cannot cure that defect. Carrier asserts, but offers no proof, that Gilmore himself issued a belated denial under date of June 3, 1977, some three weeks after the time limit had expired. Nor can Carrier find comfort in its theory that because it used Gilmore as Hearing Officer, due process and fairness required someone other than Gilmore to respond to the claim. The Agreement does not specify the identity of a Hearing Officer but Carrier cannot obviate the response requirement of Rule 6-A-1 by using the immediate superior in that capacity. Such an argument smacks of bootstrapping and is no excuse for the violation of Rule 6-A-1.

"The principles governing this case are set forth with clarity and brevity in Award 4-3559 which dealt with an identical issue:

"`The Board holds that the claim was properly initiated under Rule 6-A-1, which applies to "an injustice ... with respect to any matter." The reference in Rule 6-A-1 to Rule 4-G-1 is limited to an injunction that the time period specified in the latter rule shall be observed. This reference does not transfer the claim in whole to Rule 4-G-1.

"`Basic to all consideration of matters by this Board is the paramount necessity to be guided and bound by the clear and unequivocal language of the Agreement between the parties. The consideration that some alternate method of procedure may seem fitting and sufficient to one of the parties does not permit the Board to share such view. In this instance, the Organization followed the appeal procedure in precise fashion. The Carrier, on the other hand, chose to eliminate the "immediate superior" from the appeals procedure altogether. The record is barren of any indication that the Carrier sought or obtained the Organization's concurrence in this procedural deviation. Not only has the Organization found the Carrier in technical error, but in addition the Organization properly points out that the appeal was denied to the first instance by the same Carrier official who imposed the initial disqualification and later moderation thereof.

"`Notification was due to the Claimant and the Organization from his immediate superior. If the immediate superior, upon consideration, had denied the claim, and the Organization had pursued its appeal, higher officers of the Carrier would become properly involved. But this does not permit the Carrier, under the language of the Agreement, to ignore the required role of the immediate supervisor in the chain of appeal. The Organization was entitled to a reply from the immediate supervisor. In its absence, the Agreement is clear (Rule 4-G-1(c)): "When not so notified, claims will be allowed."

"`Whether the Carrier's actions were deliberate or accidental need not be determined. What is certain is that the Carrier violated the rules of procedure and that the same rules specify the remedy.'

"Also, the decision in Award 4-3284 is directly on point, as follows:

"`The claim alleging "injustice" was also a claim for money alleged to be due and thus the time period specified in Rule 4-G-1 shall be observed. The claim was presented by the duly accredited representative and was not allowed. No written notification of disallowal was sent to the duly accredited representative within sixty calendar days from the date the claim was presented.

"`The foregoing record establishes beyond cavil that Rules 6-A-1 and 4-G-1 (to the extent that the latter is incorporated by reference into the former) have been violated by the Carrier. In the facts and circumstances, and in the face of the express language of 4-G-1 we need not and do not reach the merits of Claimant's disqualification.

"`Presented, the Agreement provides with unabated clarity that "When not so notified claims will be allowed" (Emphasis added) In the face of such clear and unambiguous contract language we must give effect to the provisions exactly as it is written by the parties. To do otherwise would be to usurp in the name of interpretation the role of the draftsmen of the Agreement, and this we shall not do. Accordingly, and consistent with the mandate of the Agreement, we shall sustain the claim for reinstatement and compensation. We note in so holding that Rule 4-G-1 (h) specifies that the monetary adjustment "shall not exceed in amount the difference between the amount actually earned by (Claimant) and the amount he would have earned from the Company if he had been properly dealt with under the Agreement."'

"Such results might to a layman appear harsh or inequitable, or even to permit a `guilty' party to escape through a `technicality'. If such be the case in individual applications, then the place to seek relief is at the bargaining table and not in the arbitration forum. We, no less than the parties, must take the contract as we find it. We cannot stretch one way or the other to provide our personal brand of `justice'.

"Based upon all of the foregoing, we conclude that Carrier failed to comply with the essential procedural requirement of Rule 6-A-1 within the time period specified in Rule 4-G-1. That being the case, the Agreement itself establishes the remedy, i.e., the claim must be allowed. Accordingly, without reaching the merits of the disqualification, we are obligated to order Claimant's reinstatement as a Yardmaster effective March 11, 1977, with compensatory or remedial damages consistent with Rule 4-G-1." (Emphasis ours)

In Public Law Board No. 2287, Award No. 2 (Eischen) also between these same parties, the Majority held as follows:

"The appeal on the property by the General Chairman focused on failure of the immediate superior, Trainmaster Serens, to respond to the claim within the time limit specified in Rule 4-G-1. Indeed, the record shows that Serens, the immediate superior, never did respond to the claim. For reasons developed fully in our Award No. 1, Claim No. 1, that failure proves fatal to Carrier's case. Carrier argues that it took Serens out of the line of appeal to protect Claimant's rights. But Rule 6-A-1 does not grant such latitude. In our judgment Award 4-3382 which holds to the contrary is plainly erroneous. Since the Rule is clear and unambiguous, we cannot spin our own theories of `equity and due process' nor can Carrier avoid the consequences of its failure to adhere to the Rules-expressed mandate. In that connection, we concur with the analysis and result in Award 4-3559.

"With respect to the liability for such procedural violation, we have analyzed the leading cases in our recent Award No. 1 and concluded that the findings of Awards 4-3284 and 4-3559 are controlling. In our judgement, we have no alternative under the applicable Rules but to sustain the claim. In so doing, we express no views regarding the merits nor do we reach the several other procedural objections raised by the Organization. Claimant must be reinstated effective December 2, 1976 and made whole by the payment of compensatory damages consistent with Rule 4-G-1. Claimant's subsequent medical disqualification for being over weight is a matter of record but we do not have sufficient information before us at this time to express any view concerning the effect, if any, of that medical disqualification upon his recovery under this Award." (Emphasis ours)

In Public Law Board No. 2287, Award No. 3 (Eischen), concerning this same issue, the Majority there held as follows:

"For reasons developed fully in Award No. 1, the failure of the Trainmaster to deny or disallow the dual claim is fatal under Rules 4-G-1 and 6-A-1."

In Public Law Board No. 2786, Award No. 9 (Franden), again between these same two parties, and like the other awards cited, supra, the Majority again rules on the Carrier's failure to comply with the provisions of Rule 6-A-1(b) and they write as follows:

"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 Claimant's 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.

"The Carrier's failure to abide by the procedure set out in Rule 6-A-1(b), was timely raised and hence was fatal. We will sustain the claim." (Emphasis ours)