AWARDS 67 - NO MUTUAL AGREEMENT TO POSTPONE INVESTIGATION

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. 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 Brakeman 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."

Third Division Award No. 22258 (Yagoda)

"Employees point out that in the instant situation notices were originally issued on August 3, 1976. This clearly denotes awareness by Carrier Supervision of the alleged offense by that date. The holding of the hearing on August 17, 1976 created an interval of fourteen (14) days between the two dates, clearly and decisively in excess of the seven calendar day limit permitted by Rule 24(a). The fact that this was accomplished by a unilateral decision by Carrier to postpone the hearing from an earlier date (which would have been well within the seven days) does not exonerate Carrier from having violated Rule 24 (a). Employees conclude that on these procedural grounds, the penalty should be annulled without reaching the merits of the underlying claim.

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"The first obligation of the parties, and of a tribunal which has the duty to judge their fidelity to those words, is compliance with the commitments to which the parties put their signatures. Beyond general assertions by Carrier that it was acting in conformity with customary routine postponements designed to allow the fairest and fullest trial process, there has been no showing that such was the reason or the need here for the postponement nor that there was any circumstances justifiable impeding adherence to the contract rule on this subject. Carrier is mistaken in its contention that failure of Claimant to protest the postponement when it was instituted made Claimant a party to such deferral. The action was a unilateral one by Carrier and was timely protested at hearings."