AWARDS 59 - DISCIPLINE CASES SETTLED ON PROCEDURAL ERRORS ALONE

Fourth Division Award No. 4211 (Scheinman)

"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."

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

"In the instant case, Claimant was given a written decision within twenty (20) days. Both the Claimant and Organization were provided a copy of the transcript. Most critical and distinguishing in the instant case is that the Regional Chairman was aware of the decision within two days after the letter was issued. This fact is substantiated by the Carrier and not disputed by the Organization. In all, the Carrier maintains, that even if a minor technical oversight did occur, it did not deny the Claimant his rights to prepare an appeal, nor overcome the Claimant's guilt in the merits of the case. In its letter of January 11, 1985, Carrier insists that in these particular circumstances it was in compliance with the Agreement.

"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 the 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." (Emphasis ours)

Fourth Division Award No. 4278 (Zusman)

"As for violations of Article 22, the record as developed on property clearly shows Agreement violation on the part of the Carrier. The language of Article 22 is clear and unambiguous. It states that a stenographic report will be taken at all hearings and will be furnished to the employee and Regional Chairman. The specific language is written to include all hearings, not simply those in which discipline is assessed. It also requires a decision submitted to the Regional Chairman within twenty (20) days. This Board is not constituted with the authority to add language of intent to an Agreement. The language is clear that a Transcript and discipline decision is to be submitted in all cases. A review of past awards puts the weight of support on the position of the Organization when specifically considering this issue as in the case of Third Division Award 24891 (Cohen) which stated:

"`The terms of Rule 21(c) are clear, unambiguous and unqualified by its failure or refusal to furnish a transcript of the hearing ...the Carrier has violated [the Rule]. That the charges were not sustained and thus no discipline imposed...is irrelevant... The terms of the Rule are in no way modified or nullified by the outcome of the hearing.'

"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 suggests 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. 3850 (Sickles)

"This same issue of proper notice to a Regional Chairman was recently adjudicated with the same parties involved (see Award 3797 (Sickles)) and unless such award is palpably erroneous on its face or clearly distinguishable from the instant case, we are prepared to support the conclusion therein that the notice is mandatory and will therefore support the claim herein.

"This is not a novel question. The many cases involving notice have been reviewed, and we do not find Award 3797 palpably in error.

"We interpret the rule to mean that the Regional Chairman should be provided with a written copy of the charges prior to the hearing.

"Two questions are specifically raised which may possibly distinguish this case:

"(1) Is the verbal notification of the Regional Chairman that a notice of charges is on its way to him an adequate substitute for his actual receipt of the written notice, and

"(2) When the Regional Chairman alleges that he did not receive a copy of the notice prior to the hearing date, is the documentary proof of the mailing of a copy of the charges adequate to satisfy the requirement of the rule?

"With respect to the first question, `verbal notification', it is clear from the testimony that the Regional Chairman was informed by telephone that the charges were being mailed to him and informed of the date of the hearing. The Regional Chairman was instructed by his superior not to attend such hearing unless he received a written copy of the charges as required by the agreement.

"We find, however, that the language of the agreement clearly requires a written notice to the Regional Chairman prior to the date of the hearing, and that verbal notification is not a substitute for a written notice.

"With respect to the second question, we find, in conformance with a long line of awards, that the mere mailing or proof of mailing of a notice or other document is not sufficient to establish that it was, in fact, received if the alleged recipient denies having received the document. There is no duty on the part of the alleged recipient to prove that he did not receive it. The burden of proving receipt is on the sender by the use of registered mail or whatever device is appropriate which will evidence the actual receipt. In the instant case, the carrier did not establish that the Regional Chairman received the notice.

"It has also been alleged that, in this case, the claimant waived his right of representation at the investigation. In reviewing the evidence, it is not clear that the response of the claimant can be interpreted as a waiver of his rights. More significantly, the comments of the claimant cannot, in any way, be interpreted as waiving the right of the Regional Chairman to receive a timely written notice. In any event, the claimant does not have the right to waive timely notification to the Regional Chairman."

Fourth Division Award No. 980 (Ferguson)

"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."

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."

Public Law Board No. 2763, Award No. 3 (Van Wart)

"Did Claimant receive a `precise charge'? We think not. A fair reading of precise charge permits the conclusion that it was not precise. Although he may have been aware of the derailment at 12:15 PM, the charge was not such as to permit him an idea as to what he was to defend against. He was not given the who, what, when, where and why of the situation. As pointed out in Fourth Division Award 3489 (Sickles) between these parties:

"`...Whether or not the issue of "precise charge" is properly before us, nonetheless, when Article 7(a) of the Agreement recites that a hearing will be held, it must be presumed that said hearing, is in contemplation of a charge of some asserted dereliction.'"

Fourth Division Award No. 3489 (Sickles)

"On September 30, 1975, Claimant was notified - in accordance with the rules of the Wage Agreement - to report for a hearing `...on the following matter':

"`You are charged with being absent during your tour of duty on September 29, 1975.'

"Subsequent to investigation, Claimant was notified that he was at fault for being `...absent during your tour of duty and observed as a person who was under the influence of alcohol or drugs, September 29, 1975...' (underscoring supplied). Claimant was dismissed from service.

"The record is rather extensive in this case, and both parties have submitted lengthy briefs, citing numerous Awards concerning a variety of issues. But, in the final analysis, we return to the issue of variance.

"Whether or not the issue of `precise charge' is properly before us, nontheless, (sic) when Article 7(a) of the Agreement recites that a hearing will be held, it must be presumed that said hearing is in contemplation of a charge of some asserted dereliction.

"We are not here concerned with a question of lesser included offenses - or notice of one issue arguably placing an employee on notice of possible other allegations. Rule G and absence from duty provisions may, on occasions, overlap, but they are separate considerations and each contain their own essential elements.

"Our efforts to dismiss the Rule G conclusion from the case and to focus solely upon the finding of absence from duty has been non-productive. Thus, we have no recourse but to sustain the entire claim."