TIME LIMITS TO HOLD HEARING (27)

Fourth Division Award No. 3766 (McMurray) 

"A perfunctory hearing was convened as scheduled and the hearing officer recessed the investigation to January 18, 1979. That date was changed to January 15, 1979. Following the full investigation at that time the action herein complained of was taken by the Carrier on January 25, 1979.

"At the outset, the Organization raises a strong procedural objection claiming that Rule 15 of the Agreement was violated. That rule reads in pertinent part:

"'The hearing shall begin within 20 calendar days from the date of Carrier's first knowledge of the occurrence or offense.'

"The investigation was called to order on January 10, which was the 19th day after the occurrence. However, it was perfunctory. The hearing officer called the session to order and querried (sic) the claimant regarding receipt of the notice, his understanding of his rights, and his willingness to proceed. Mr. Lidwell responded affirmatively. Whereupon, the hearing officer announced that since a company witness was not available, the investigation was recessed until January 18. He would not allow the Claimant or his organization to place any further comments on the record. At the commencement of the hearing on January 15, 1979, the Organization requested that the tape of the January 10 meeting be read in its entirety in order to place its position on the record. That request was refused by the hearing officer and the events following the arbitrary announcement of recess were never allowed in the record. It is difficult for this Board to understand how a meeting wherein one party was denied any right to participate on the record could be judged the commencement of a fair and impartial investigation as required by the contract. The Carrier cannot avoid its clear obligation under the contract by such ruse. We find that the investigation required by contractural (sic) obligation actually commenced on January 15, well beyond the 20-day limitation. Rule 15 was violated and we have no alternative but to uphold the position of the claimant."

Fourth Division Award No. 3953 (Scheinman)

"The claim must be sustained because of Carrier's failure to timely hold a hearing in accordance with Rule 7(b). That rule reads, in relevant part:

"`If charges are made against a Yardmaster, he shall be granted a hearing within five days after notice before an officer not lower in rank than Superintendent or Terminal Superintendent...'

"Notice of the charge was given Claimant on June 3, 1980, with a hearing originally scheduled for June 5, 1980. At the Claimant's request, the hearing was postponed until June 7, 1980. However, on June 5, 1980 Carrier again postponed the hearing, at Brakemen Wallace's request to July 15, 1980, well beyond the five day limit of Rule 7(b). It is understandable that Carrier, having acceded to Claimant's request for a postponement would also agree to a similar request from Brakeman Wallace. However, Brakeman Wallace is not a party to this claim. The only parties, and thus the only individuals who could agree to a postponement, are Claimant (or his Organization, on his behalf) and Carrier.

"Carrier argues that the Organization acquiesced in this postponement when it occurred and, therefore, that it was not unilateral. However, during the handling on the property, the Organization's General Chairman strongly argued that Claimant neither requested nor concurred in the postponement from June 5, 1980 to July 15, 1980 (see letter of August 10, 1980). Since this statement was not refuted by Carrier, we must conclude that the second postponement was unilateral.

"Carrier's argument that Claimant was not prejudiced by the postponement is not on point. As this Board has noted on several occasions time limits of this type must be strictly enforced. They are not mere guidelines. They are procedural prerequisites to the imposition of discipline. See for example, Third Division Awards 23496, 19275.

"In view of our finding on this issue, we need not consider other procedural arguments raised by the Organization, and we must sustain the claim as presented without reaching the merits of the case."

Third Division Award No. 17081 (Myers)

"Section (a) of Rule 22 of the Agreement is controlling in this dispute. That section reads as follows:

"`An employe who has been in service more than 30 days shall not be disciplined or dismissed without fair and impartial investigation, at which investigation he may be assisted by representatives of his choice. He may, however, be held out of service pending such investigation, and such holding from service shall not be deemed a violation of the principle of fair and impartial investigation and appeal. The date for the investigation shall be fixed within ten days after the date charged with the offense or held from service. A transcript of statements taken will be made and a copy furnished the employe or his representative upon request. Decision will be rendered within 15 days after completion of the investigation unless an extension of time is agreed to.'

"Since the investigation in the instant case was not conducted within the prescribed time limitations, the above provision was violated. (See Award No. 12437 with George S. Ives as Referee.) The claim will, therefore, be sustained."

Third Division Award No. 17145 (Devine)

"Rule 28 of the applicable Agreement reads in part:

"`Rule 28. (a) Except as provided in Rule 27, a train dispatcher will not be disciplined or dismissed without a fair and impartial hearing, which shall be held within ten (10) calendar days after the date of the occurrence to be investigated or witin (sic) ten (10) calendar days after the date the Management has knowledge of the occurrence to be investigated. Suspension pending a hearing and decision thereon shall not be deemed a violation of this principle.

* * *

"`(j) Time limits provided for may be extended by agreement between the Management and the train dispatcher or his representative.'

"The Petitioner contends (1) that the Carrier failed to comply with the procedural requirements of Rule 28, and (2) that the facts developed at the investigation did not establish any responsibility on the part of the Claimant for the accident involved.

"The record is clear that the investigation was not held within the ten-day time limitation of Rule 28(a). The record is also clear that no agreement was reached when the Management and the train dispatcher or his representative to extend the time limit for the holding of the investigation. The procedural requirements of the Agreement were clearly violated by the Carrier, and we will sustain the claim on this basis, without passing upon the question as to the responsibility on the part of the Claimant for the accident involved. See Awards 14496, 16697, 12103, 8714, among others."

Third Division Award No. 19275 (Edgett)

"The record is clear that the investigation was not conducted within the 10-day time limitation of Article IX(b). There is no showing that the time limit was extended by Agreement between the Carrier and the dispatcher or his representative, or that the Carrier attempted to obtain such an Agreement. The Board must apply the Agreement as written, and as the procedural requirements were clearly violated by the Carrier, we will sustain the claim on this basis, without passing upon the question as to the responsibility on the part of the claimant for the accident involved. See Awards 17145, 17081, 14497, 14496, 8714."

Third Division Award No. 21453 (O'Brien)

"The unique claim before us is actually multi-faceted. For example, one issue raised by the dispute is whether the Carrier violated Rule 20 when they failed to accord Claimant a hearing prior to June 13, 1974 as requested by his General Chairman in his May 21, 1974 letter to the Carrier? The record reveals that the General Chairman had previously agreed to postpone the hearing beyond the time period prescribed by Rule 20(a). Yet he notified Carrier that no further extensions beyond June 12, 1974 would be agreed to. Accordingly, it was incumbent on the Carrier to accord Claimant a hearing on or before June 12, 1974. Inasmuch as they failed to do so, this Board finds that they thereby violated Rule 20(a). We therefore order Claimant compensated for the period June 13, 1974 to July 31, 1974, the date on which the hearing was finally held, in accordance with the provisions of Rule 20(g)."

Fourth Division Award No. 1767 (Weston)

"As of February 8, 1961, there was no violation of the time-limit rule since all postponements had been agreed to by the parties. To accommodate Carrier's convenience, the investigation could have been delayed a few days more since the February 8 had been requested by Claimant for his own convenience. However, Carrier did not hold the investigation until five more months had elapsed and the burden is on Carrier to show by written evidence that the parties had agreed to postpone the investigation to that extent. Where the ten day limit was so clearly prescribed by the applicable collective bargaining agreement, Carrier could not rely on anything but clear written evidence of an agreement to postpone the disciplinary investigation beyond that time limit."

First Division Award No. 20711 (Abernethy)

"The record is clear and unmistakable that claimant's responsibility for that fire was admitted and was established when claimant pleaded guilty thereto on February 21, 1962. The cause of action upon which carrier relies clearly arose at that time, if not before. Yet claimant was not charged with employe misconduct as a result thereof until April 11, 1962, and hearing was not held until April 18, 1962, approximately two months after the cause of action arose.

"Moreover, in spite of the fact that petitioner challenged the timeliness of carrier's action before the hearing was held, at the time of the hearing, and again in its submission to this Board, carrier has offered no explanation, and has made no showing of any kind as to why it was not 'possible' to comply with the seven (7) day time limit fixed by the parties in Rule 17 of their contractual Agreement.

"Under these circumstances, while we in no way condone claimant's conduct, we think this Board is barred from considering this case on its merits and that a sustaining award is indicated. To hold otherwise would require us to read into Rule 17, Paragraph (c), exceptions to the seven (7) day time limit which were not included there by the parties. This we may not do."

Third Division Award No. 22162 (Weiss)

". . .We can only conclude from this record that claimant was, in fact, withheld from service on May 21, 1976, and that the investigation was required to have been held within ten (10) days of that date. When the investigation was not held until June 1, 1976, the clear language of Rule 26 was violated. What was said in Award No. 19275 of this Division applies equally in this instance. There we find:

"`The record is clear that the investigation was not conducted within the 10-day time limitation of Article IX(b). There is no showing that the time limit was extended by Agreement between the Carrier and the dispatcher or his representative, or that the Carrier attempted to obtain such an Agreement. The Board must apply the Agreement as written, and as the procedural requirements were clearly violated by the Carrier, we will sustain the claim on this basis, without passing upon the question as to the responsibility on the part of the claimant for the accident involved. See Awards 17145, 17081, 14497, 14496, 8714.'

"See also First Division Award No. 20711.

"In view of the time limit violation, we will sustain the claim for payment in accordance with the provisions of Rule 30 of the Agreement without passing on the merits of the discipline as assessed."

Third Division Award No. 19974 (Rubenstein)

"On November 15, 1971 Claimant was notified of a charge against him of violation of certain Carrier regulations, and to appear at a hearing scheduled for November 19, 1971, at 11:30 A.M. The claimant and his representative appeared at the time scheduled, but the hearing did not start until 2:20 P.M. Five minutes later (at 2:25 P.M.) the hearing was adjourned by the hearing officer to November 29, 1971, over the expressed objection of the claimant and his representative. On November 29, 1971 the representative of the claimant objected to the continuation of the hearing on the ground that it violated Rule 28, sections (a) and (m) of the existing agreement between the parties.

"The pertinent sections of Rule 28, are:

"`(a) An employee who has been in service sixty (60) days or more shall not be disciplined without investigation at which investigation he may be represented by one or more duly accredited representatives... The investigation will be held within seven (7) days of the date when charged with the offense or held from service. A decision will be rendered within seven (7) days after the completion of the investigation.

* * * * * *

"`(b) The time limits provided in this Rule may be extended by mutual agreement.'

"The Board is of the opinion that even though Rule 28(a) does not specifically provide that a violation of that paragraph vitiates the disciplinary proceedings, section (m) does that, by specifically providing that the time limits `may be extended by mutual agreement'. Absent such an agreement, and especially in face of definite opposition thereto, the party extending the time limitations unilaterally is guilty of violation of the agreement.

"We, therefore, hold that the Carrier violated the provisions of Rule 28, and sustain the Claim."

Third Division Award No. 27800 (Kearney)

"The first procedural issue before the Board concerns whether the time limit under Rule 21 for holding investigations began to toll on March 16, 1985, when the Stationmaster learned that Claimant was late for his assignment or on March 18, 1985, when the Manager first learned of Claimant's tardiness.

"The relevant portion of Paragraph 'a' of Rule 21 provides:

"`The investigation shall be held within seven calendar days of the alleged offense or within seven calendar days of the date information concerning the alleged offense has reached his supervisory officer.' (Underscoring added).

"If, as the Organization contends, the Stationmaster is a 'supervisory officer' as contemplated by this Rule then the investigation, which convened nine days after the Stationmaster first learned of the alleged offense, was untimely.

"This is not a matter of first impression for the Board. In Third Division Award 25888, a case involving the same parties, similar facts and an interpretation of the identical language in Rule 21 the Board found that an employee with `some level of supervisory responsibility' over the Claimant and who, like Claimant, was covered by the Clerk's Agreement, did fit the definition of supervisory officer contemplated by Rule 21. The circumstances upon which this finding is based are identical to the ones presented to the Board in the instant case. Therefore, since there is not a sufficient showing that the decision in Third Division Award 25888 was patently erroneous, the Board is bound by precedent. (See Third Division Awards 19354 and 10911.) Accordingly, the Board finds that the Stationmaster is a 'supervisory officer' within the meaning of Rule 21 and the investigation held nine days after he learned of the alleged offense was untimely.

"With respect to the question of remedy the Carrier contends that a finding of untimeliness should not mandate a complete reversal of the discipline. In support of this position the Carrier cites Third Division Award 26309. Analysis of that decision persuades us that the approach taken therein was limited to the peculiar facts of that case and is without precedent value herein. In contrast, Third Division Award 25888, relied on by the Organization, is clearly on point. Therein, after finding a violation by the Carrier of the time limits expressed in Rule 21 the Board concluded that 'in the longstanding practices of this Board, such violation... causes us to sustain the claim.' In light of our finding that the hearing was not held in compliance with the time limits of Rule 21 the Claim must be sustained without regard to its merits."

To the same conclusion see Third Division Award Nos. 17145, 14497, 17353, 19796, 20977, 22258, 12437,  14496, 16697, 12103, 8714, 19275.

Third Division Award No. 28927 (Mason)

"The Agreement Rule which is applicable in this case is Rule 25 Investigation and Hearing which reads, in pertinent part, as follows:

"`An employee who has been in the service more than sixty (60) days or whose application has been formally approved shall not be disciplined or dismissed without investigation and hearing. He may, however, be held out of service pending such investigation and hearing. The investigation shall be held within seven (7) days of the date when charged with the offense or held from service.'

"The time limit as set forth is clear, unambiguous and mandatory. It has not been met by the Carrier in this case. We will not, therefore, examine the merits of the discipline inasmuch as the Investigation was not timely held. This Board has ruled in many cases, too numerous to require citation here, the time limits such as those found in Rule No. 25 are meant to be complied with. When they are not complied with, we will sustain the Claim of the Organization."

Third Division Award No. 30248 (Wesman)

"At the outset, the Organization raised a procedural objection with regard to Carrier's issuance of the notice to report for a Formal Investigation on Saturday, August 10, 1991. The notice, dated August 5, 1991, and sent via registered mail, was received by the Organization on August 8, 1991, and by Claimant on August 9, 1991. Carrier then unilaterally postponed the Investigation until September 6, 1991.

"The Organization points out that under Rule 19(b) of the Agreement, a charged employee and his representative must be given no less than five days notice preceding an Investigation. Further, the Investigation 'shall be held. . .within ten (10) calendar days of the date when the employee is notified of the offenses or held from service (subject to one postponement not to exceed twenty (20) days at the request of either party, with further postponements subject to agreement).'

"While this Board has allowed this Carrier some small latitude with respect to time limits when its action has not disadvantaged a Claimant (See Third Division Award 30071), we are in this case persuaded that the time limits were egregiously violated. The Organization argued persuasively that scheduling the Investigatioin (sic) on a Saturday, five days after the date of the notice, but only one day after its receipt by Claimant, clearly violates the letter and spirit of Rule 19(b) of the Agreement. Moreover, the Board concurs with the Organization that the Carrier's unilateral postponement of the Investigation until September 6, 1991, twenty-seven days after August 10, 1991, simply compounded the violation. (See Third Division Awards 24247, 23082, and 11757)."

Third Division Award No. 30998 (Malin)

"Rule 1(a)'s language is mandatory. It requires Carrier to hold the Hearing within 20 days of an employee's suspension. In the instant case, the Hearing initially was scheduled within the 20-day period. However, Carrier unilaterally postponed the Hearing to a date beyond the 20-day period.

"At the Hearing, the Organization's representative objected to the failure to hold the Hearing in a timely manner. He stated that Carrier failed to request the Organization's agreement to a postponement. Rather, he stated, Carrier telephoned him and told him that the Hearing would be postponed. There is no evidence to the contrary in the record.

"Carrier contends that the Organization did not object when informed of the postponement and, therefore, should be held to have acquiesced in it. The Organization, however, was simply presented with a fait accompli; it was not asked if it had any objection. The Organization raised a timely objection at the Hearing.

"Prior decisions of this Board make clear that such conduct violates the agreement. Furthermore, they make clear that we must sustain the claim without reaching the merits. See, e.g., Third Division Awards 22258, 23082, 23459, 24237, 24247.

"In reaching our decision, we have considered Third Division Award 26309. In that case the Board found a violation when the carrier unilaterally postponed a Hearing beyond the contractual time limits, but did not set aside the discipline. Instead, the Board awarded the claimant backpay for the period of delay in holding the Hearing. That decision, however, involved unique circumstances not present here.

"Specifically, the Board in Third Division Award 26309 observed that some prior Awards involving the same carrier had treated similar violations by only awarding backpay for the period of the delay in the Hearing, while others had sustained the claims in their entirety. The Board opined that it would be 'manifestly unfair' to sustain the claim in its entirety because the prior Awards had given the parties 'mixed signals' concerning the remedy for a time limit violation.

"The Board warned the carrier that the time limit' language was negotiated by the parties and it has no meaning if the Carrier continues to assume that it meets its obligation by setting a Hearing within the seven day period and then unilaterally postponing the proceeding to a date beyond the seven day limit only to suffer the potential liability of compensation to the employe for that period of time beyond the seven days.' The Award placed the carrier on notice that future violations would result in the Board sustaining the claims in their entirety.

"In the instant dispute, there is no evidence of the parties receiving similarly mixed signals concerning enforcement of time limits. In the language of Award 26309, it would leave the language of Rule 1(a) without meaning were we to only award compensation for the delay in holding the Hearing. In accordance with the dominant view of this Board, we sustain the claim in its entirety."