FAILURE TO ATTACH EXHIBITS TO TRANSCRIPT, MISSING TESTIMONY, NO TRANSCRIPT SUPPLIED, UNTIMELY TRANSCRIPT (49)

First Division Award No. 24106 (Fletcher)

"This Board, upon review of the complete record, finds that it is unnecessary to address but one matter. We conclude that the procedural arguments advanced by the Organization on failure to timely furnish a transcript of the Investigation has merit. A similar dispute, involving the same Carrier and a similar provision dealing with the furnishing of transcripts, was disposed of in Award 3229 of Special Board of Adjustment No. 18. There it was stated:

"`The Board agrees with the Organization that without a copy of the transcript a fully informed and intelligent appeal isn't possible. In fact, it is easy to imagine that it would be difficult in many cases for the Carrier to make a full and fair decision on the evidence without a transcript. If the transcript could be provided after the disciplinary decision the Claimant's rights to 90 days in which to appeal the decision would be prejudiced and abrogated.'

"We do not find Award 3229 to be in error, it will be followed here, and this Claim will be sustained on procedural grounds without consideration of the merits."

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. 2166 (Seidenberg)

"The Board is compelled to conclude from the record before it that the Claimant was not accorded a proper investigation in accordance with the provisions of Rule 20 of the Schedule. The apparent refusal of the Carrier's hearing officer to incorporate into the transcript the protests made by the General Chairman was a material defect. The Claimant is contractually entitled to a fair and impartial hearing and to a transcript that completely represents what took place at the hearing. To say this is not to say that the hearing officer may not properly exclude irrelevant and immaterial data. But when and if the Organization takes issue with the ruling of the hearing officer, the transcript must accurately reflect the noted objections of the Organization. This must obviously be so because the transcript is not only the basis of the original discipline, but it is also the only basis for prosecuting an appeal from the original determination. It is true that at the oral hearing before the Division the Carrier stated that only minor details were omitted from the transcript, but what may be minor to the Carrier could well be major to the Organization. This sort of transcript is not designed to inspire confidence as to its completeness."

First Division Award No. 23930 (Benn)

"We are satisfied that Article 30(F) has not been followed. That provision requires that an `exact written transcript of the entire hearing shall be promptly prepared' [emphasis added]. Here, the Carrier issued the discipline three days after the close of the April 7, 1986, hearing when the full transcript was not prepared and received until almost two months later. Moreover, the error was not insignificant. Missing from the transcript was the testimony of dispatcher Hall - a witness deemed so important by the investigating officers that the hearing was continued from March 31, 1986, to April 7, 1986 - along with Claimant's testimony and all of the exhibits. We note that in the Carrier's Submission, great emphasis is placed upon Claimant's testimony that he did not have members of his crew stationed at the switch points prior to crossing those points as an admission that he did not comply with Rule 509. Yet, that very testimony was part of the missing portion of the transcript. Further, we note that at the conclusion of the hearing on April 7, 1986, the investigating officer stated that there would be `a review of this investigation and transcript.' The investigating officer obviously issued his decision on April 10, 1986, without the benefit of those crucial portions of the transcript. Under the circumstances of this case, such action was improper. See Public Law Board 674, Award No. 1.

"The Carrier's arguments do not change the result. First, the fact that the delay in preparation of the transcript may not have been attributable to the Carrier but was the fault of the B&OCT is immaterial. Article 30(F) places the responsibility for providing the transcript upon the Carrier. Second, the fact that the Hearing Officer was the same person assessing the discipline therefore indicating that the Hearing Officer had a firsthand account of what occurred at the hearing and issued the discipline while it was fresh in his mind misses a major point of the Rule. By its clear meaning, Article 30(F) is not only for the benefit of the Carrier, but the requirement for the prompt preparation of an exact written transcript of the entire hearing is also for Claimant's benefit in terms of permitting Claimant and the Organization to defend the case on appeal. Acceptance of the Carrier's arguments would cause us to change the language of the negotiated Rule. We do not have that authority. An 'exact' transcript of the 'entire' hearing was to be 'promptly' prepared. That was not done. We must therefore sustain the claim."

Third Division Award No. 24891 (Cohen)

"OPINION OF BOARD: Pursuant to notification by the Carrier, the Claimant attended a hearing on August 19, 1981 with respect to a charge concerning an injury which he sustained due to his failure to follow 'Safe Job Procedure'. After the hearing was held, the Carrier determined that the evidence adduced at the hearing was insufficient to uphold a finding of guilt and exonerated the Claimant. The issue in dispute arises from the Carrier's failure to furnish a transcript of the hearing to the Claimant and his representative, as demanded by the Organization.

"Rule 21 (c) provides:

"'A transcript of the evidence developed at the hearing shall be made and the employee and his representative shall be furnished copy of such transcript.'

"The terms of Rule 21 (c) are clear, unambiguous and unqualified. By its failure or refusal to furnish a transcript of the hearing held on August 19, 1981, the Carrier has violated Rule 21 (c). That the charges were not sustained and thus no discipline imposed against the Claimant is irrelevant to the application of Rule 21 (c). The terms of the Rule are in no way modified or nullified by the outcome of the hearing.

"Nor is it relevant that the Claimant has no need for the transcript in order to file an appeal. Again, it must be underscored that Rule 21 (c) is written in clear and simple language and the obligation by the Carrier, must be honored even though there is no need for an appeal. Third Division Award No. 23843.

"Moreover, it cannot be urged that since there was no `evidence developed at the hearing' to support the charge in the instant case, there is no requirement under Rule 21 (c) to provide a transcript. Rule 21 (c) provides in relevant part that a transcript of the evidence developed at the hearing shall be made***.' Rule 21 (c) does not distinguish between `evidence developed at the hearing' in support of, or not in support of, a charge. The terms of Rule 21 (c) are unqualified.

"A final matter which must be addressed is the Carrier's contention that the `transcript is nonexistent and therefore the issue is moot.' If the stenographer's notes of the hearing exist, the Carrier is required to have them transcribed. If, for some reason, it is impossible for the Carrier to satisfy its obligation under Rule 21 (c), the issue which has been raised cannot be considered moot. Indeed, the Board is of the view that a resolution of the issue is required, if only to establish the integrity of Rule 21 (c) and to be faithful to its terms.

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"Claim sustained in accordance with the Opinion."

Special Board of Adjustment No. 18, Decision 5838 (Vernon)

"The procedural issues presented by this case revolve around Sections 3 and 7 of Article 51 of the agreement covering firemen, hostlers and hostler helpers. They read as follows:

"`Section 3, Article 51 reads:

"`No employee governed by the provisions of this agreement shall be suspended or discharged, except in serious cases where fault is apparent beyond a reasonable doubt, until he has had a fair and impartial hearing before the proper officials. Ordinarily such hearing will be held within five days from date of suspension.'

"Section 7, Article 51 reads:

"`If the Chairman of the Local Committee of Adjustment requests a transcript of the testimony in an investigation that has been made, it will be furnished.'

"`Notes 1 and 2 following Section 7 read:

"`Note 1: It is understood the above rules cannot be construed to have been properly observed unless the employe and/or his representative are confronted with all the charges and evidence and provided with a copy of transcript of all evidence.

"`Note 2: A verbal request at the conclusion of an investigation, for a transcript of testimony, made by the Chairman of the Local Committee of Adjustment, or a person who acts for and in the absence of the chairman as the representative of the employe, shall be made a part of the record, and transcript will be furnished to the chairman. If the Local Chairman specifically requests two (2) copies of the transcript, same will be provided.'

"The question at issue is whether a time limit is implied under Article 51 Section 7, Note 2 for providing a transcript when requested. At the outset, it should be made clear that providing a tape recording of the investigation does not comply with the relevant rules. The rule calls for a transcript which is a written record. Beyond this there is no question as a general matter when a transcript is provided 4 months after the investigation and after a claim has been filed, denied, and appealed to the highest level that Note 2 of Section 7 has been violated. Accordingly, under the clear language of Note 1 this fact dictates that the requirements of Article 51 have not been `properly observed'. Therefore, the discipline must be vacated on this basis.

"Another question, one more specific, remains and that is when must the transcript be provided. The local chairman requested the transcript not later than the date of the decision. The Organization argues that since under Section 10 of Article 51 they must file a claim within 90 days of the discipline decision the transcript must be provided at that time. If it is not, their time limit is eroded and in order to protect the time limits they are forced to appeal decisions without the benefit of a written transcript.

"The Board agrees with the Organization that without a copy of the transcript a fully informed and intelligent appeal isn't possible. In fact, it is easy to imagine that it would be difficult in many cases for the Carrier to make a full and fair decision on the evidence without a transcript. If the transcript could be provided after the disciplinary decision the Claimant's contractual right to 90 days in which to appeal the decision would be prejudiced and abrogated. The various agreement provisions (in this case, Section 10 A and Section 7 Note 1 and 2), must be construed in such a way which gives full meaning to and does not nullify each provision. Without a transcript the Claimant's right to a full 90 days to prepare an effective appeal would be negated. It is noted that if there is difficulty in transcribing the hearing the Carrier has a reasonable period of time in which to render their disciplinary decision.

"The claim is sustained."

Special Board of Adjustment No. 248, Award No. 461 (Kabaker)

"The record compels the finding that Carrier failed to comply with the obligation imposed upon it by Item (E), Paragraph (4)(B), `Investigation Procedure' to furnish Employees or their duly-accredited representative with a copy of the investigation transcript within 15 days. The Board cannot accept Carrier's limited interpretation of the meaning of Item (E), Paragraph (4)(B) but finds that Carrier's failure to furnish Claimant's representative with a copy of the transcript within the time prescribed therein entitled Claimants to the relief sought in their Statement of Claim. Support for this conclusion is found in Award #86 of S.B.A. 727 between the instant Parties.

"Claim sustained."

Special Board of Adjustment No. 248, Award No. 516 (Kabaker)

"The evidence before the Board reveals that the Carrier failed to comply with the Investigation Rule of the Mediation Agreement in that it did not furnish the Claimant with a copy of the transcript of the investigation. Support for the conclusion, that the claim must be sustained, is found in Award No. 461 of this Board.

"Claim sustained."

Public Law Board No. 3741, Award No. 129 (Warshaw)

"Schedule Agreement Rule 17(e) states in pertinent part:

"`e) Stenographic report will be taken of all hearings held under this rule and the employee involved or his representative shall be furnished with a copy of same ......'

The Board finds that the mere use of a tape recorder rather than a stenographer to record the hearing is not a valid basis for overturning the Carrier's action where a stenographic report is then prepared and furnished to the Claimant or his representative.

"In the instant claim however, the Carrier's failure to provide a copy of the transcript violates the Agreement and warrants the Board's setting aside the Carrier's action. The Claimant or his representative has an unqualified right under the Agreement to a copy of the transcript irrespective of the merits of his claim. The Carrier may not unilaterally conclude that it need not bother to provide a copy of the transcript to the Claimant or his representative on its own judgment as to the likelihood or unlikelihood of his being able to prevail in a subsequent claim.

"Accordingly, the Board will sustain this claim."

Public Law Board No. 1464, Award No. 64 (VanWart)

"Despite the fact that there might well have been merit to the question of whether Claimant, in fact, was insubordinate by not complying with Assistant Trainmaster Gingras' order of October 11, 1974, the Board is precluded from reaching the merits of this case because of the prejudicial procedural errors committed by Carrier representative. The record shows that the Claimants representative, the local chairman, requested a copy of the transcript. Not only was the transcript not furnished him, but he was advised that it would not be given to him. Carrier's action constituted an arbitrary view and an action violative of paragraph (d) of the discipline rule, resulting in a denial of due process. The Board's observation that the notice of discipline was vague and that the discipline imposed was required to be served some two months after the hearing is viewed only as indications of the attitudinal tone reflected in this case.

"Consequently in the circumstances, without passing judgement as to the monetary aspects of the claim because of no argument thereon, we are constrained to sustain claim."

Fourth Division Award No. 4823 (Zusman)

"The Board notes that by letter of November 13, 1990, the Organization put Carrier on notice that it had requested and not received a copy of the transcript of the Investigation. Throughout the dispute on the property, the Carrier refers to the transcript, but does not produce a copy repeatedly requested by the Organization. Rule 15(d) states:

"`If stenographic record of proceedings of hearing is made, copy will be furnished the employee or his representative.'

"It is clear from this record that a transcript was made. Accordingly, when repeated requests are ignored and no denial by the Carrier is entered in the record, we can reach but one conclusion. The Carrier has violated the Agreement Rule, supra, and the Claim must be sustained without addressing the merits."

Third Division Award No. 29276 (Stallworth)

"The Board concludes, however, that the Organization has adequately established that the transcript was incomplete, and the incomplete nature of the transcript leads the Board to conclude that the procedure for imposing discipline upon the Claimant was sufficiently tainted that the discipline should be overturned.

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"The Organization has adequately established that the record is not complete in regard to its Representative raising the issue of FELA rights. On the basis of this evidence, the Board concludes that this objection, and possibly other parts of the record of the Investigative Hearing may not have been presented to the Carrier official responsible for making the decision to impose discipline, before he did so.

"The Board finds that this procedural defect is so serious that the discipline was imposed unfairly. Therefore, the Claim must be sustained."

Public Law Board No. 5150, Award No. 1 (Fletcher)

"Carrier is not privileged to edit transcripts of any statements or testimony made on the record during the hearing. Unilateral editing of testimony and statements made in the course of a formal investigation is an affront to due process, as contemplated by the discipline rules of the Agreement. If the hearing transcript contained "unpermissible" material it may be disregarded by the conducting officer when he is engaged in the decision process but it may not be excised from the transcript so that subsequent reviewing authority (Union Officers and Management Officials on appeal as well as this Board, for instance) is deprived of the opportunity of making a determination on whether it was permissible or not.

"With regard to deleting `irrelevant [and] self serving statements,' what may seem irrelevant to one may seem completely relevant to another, depending on their role in the process and the narrow goal sought to be accomplished. And when something is characterized as `self serving' it is usually the opponent offering the characterization. Self serving statements and self serving testimony cannot be excluded merely because they are self serving, for they may also be truthful and they may also be relevant and important to a correct determination of the matter under review.

"Procedural error obtained when Carrier failed to provide Claimant and her representative with an unedited copy of the investigation transcript. This procedural error fatally flaws the disciplinary process and the suspension assessed must be rescinded."

Fourth Division Award No. 4990 (Zusman)

"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, the 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."

Fourth Division Award No. 4969 (Zusman)

"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)."