AWARD 137 - BOARD MUST RESOLVE PROCEDURAL ISSUES BEFORE IT HAS THE RIGHT TO REACH THE MERITS

Fourth Division Award No. 4990 (Zusman)

"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."

Fourth Division Award No. 4969 (Zusman)

"…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."

Public Law Board No. 3785, Awd. 1, Case 1 (Suntrup) (RYA/BNSF)

"Lastly, there are a number of procedural issues raised in this case by the Organization. One is the claim that the Carrier was in violation of current Agreement Rule 22 when it did not require that the witnesses requested by the Claimant be present at the investigation. That Rule reads, in pertinent part:

...(a)t such investigation, all interested parties will be notified and they will be required to be present.

The Claimant had requested that six (6) witnesses be present for the defense at the investigation and only one (1) appeared. There is insufficient evidence to justify any conclusion that the presence of these other witnesses would have materially changed substantial evidence findings by this Board. This is so because it appears that the witnesses in question would have had only indirect knowledge, at best, of the circumstances at bar and/or because any testimony they may have proffered would have had to be weighed against that presented by the Carrier's witnesses with respect to the two charges levied against the Claimant. With reference to the latter a Board such as this, by long established precedent, cannot set itself up as trier of fact to resolve conflicting testimony (Third Division 10791, 16281, 21238, 21612) and the presence of absence of these witnesses would not have effectively made any difference with respect to legal conclusions. Nevertheless, it should be noted for the record that the Carrier was in technical contravention of Rule 22 when the witnesses requested by the Claimant were not required to be present at the investigation.

A second procedural argument raised by the Organization is that the letter of discipline dated November 2, 1983 addresses issues which go beyond the charges found in the notice sent to the Claimant on October 6, 1983. Such error is not controlling given substantial evidence in the record which is sufficient to support only those two charges levied against the Claimant prior to the investigation.

A third procedural argument raised is that the hearing officer showed prejudice. The record does not support this."