(Brotherhood of Maintenance of Way Employes PARTIES TO DISPUTE: (Louisville and Nashville Railroad Company

Track Repairman D. M. Brady shall be paid for all time lost from the date of his dismissal from service (6-30-75) to the date he was returned to service with seniority unimpaired (10/6/75) because of the Carrier's failure to timely render decision following the investigation held on July 10, 1975 (System File 1-9(75)jD-106131; E-306-9).

 OPINION OF BOARD

 On June 30, 1975, Claimant was dismissed from service for an asserted insubordination, and he requested an investigation. The investigation was conducted on July 10, 1975. Although Rule 27(b) provides:

Carrier was four days late in rendering its decision which sustained that he was guilty of insubordination, and which reaffirmed the dismissal.

 On the property, the Organization sought total reinstatement because of the failure to comply with the 30-day time limit.

 In response, on September 3, 1975, Carrier conceded that "... the decision was not rendered within the 30 day time limit..." and it stated that in view of that:

                    Award Number 21996

                    Docket Number MW-21969 Page 2


        "I am willing to reinstate (Claimant) with seniority unimpaired without pay for time lost since his dismissal."


Claimant declined the offer because it did not repay him fox time lost and for expenses. Thereafter, on October 2, 1975, Carrier restored Claimant to service (effective October 6, 1975) but without compensation.

 The organization contends that the Employe is entitled to full reinstatement with pay for all time lost and seniority unimpaired because of the failure to comply with the time limit mandate. Conversely, Carrier asserts that the proper remedy would be an award of no more than four (4) days of pay.

 In support of its position, Carrier has cited various Awards, such as First Division Awards 13 845 and 15 579, as well. as Third Division Awards 20423 (which dealt with a failure to provide the Employes' representative with certain material), Award 19842 (which dealt with an improper holding out of service pending investigation) and a 1954 Decision of the United States Court of Appeals (4th).

 Yet, the author of Third Division Award 20423 stated, in Award 21018:

        "It is well established that a Claim which has not been progressed in accordance with the Agreement does not meet the requirements of the Railway Labor Act and this Board lacks jurisdiction to consider it. In one of a large number of Awards on this subject, Award 12767, we said:


          '...the Board finds that in order to have avoided. the time limitations, the Organization must have filed its appeal before midnight on January 31, 1960. Since it waited one day too long, the time limits expired at midnight, January 31, 1960, and the claim is therefore barred.'


        Similarly, in the instant case, the Organization simply was at least one day too late. The inescapable conclusion is that the Board has no jurisdiction over this dispute."


        In Award 18352, we note:


        "We have consistently held that an employe who has failed to initiate action within the time limitations fixed in an agreement is barred from initiating an action at a later date. Satisfaction of identified action within

                    Award Number 1!1996

                    Docket Number MW-21969 Page 3


        "fixed agreed upon time limitations is mandatory as to each of the parties. Time limitations set by contractual agreement have the same force and effect as those found in statutes and court rules - a party failing to comply by nonfeasances finds himself hoisted by his own petard."


See, also, Award 20657.

 quite recently, this Division adopted Award 21$73 which cited, with favor, Award 21675. There it was determined that:

        "...time limit provisions are to be applied as written by the parties and that any deviation from this principle would amount to rewriting the parties' Agreement, which no third party is empowered to do."


When it agreed to a rule which stated that a " ..Decision will b e rendered..." (underscoring supplied), Carrier assumed a mandatory obligation. Employers are quick to assert that Employes are without a remedy if they fail to comply with a contractual time limit. Accordingly, we sustain the claim.

          FINDINGS: The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds and holds:


        That the parties waived oral hearing;


That the Carrier and the Employes involved in this dispute are respectively Carrier and Employes within the meaning of the Railway Labor Act, as approved June 21, 1934;

 That this Division of the Adjustment Board has jurisdiction over the dispute involved herein; and

        That the Agreement was violated.


                    A W A R D


        Claim sustained.


                              NATIONAL RAILROAD ADJUSTMENT BOARD

                              By Order of Third Division


ATTEST: i~ ~. Aaktize
          Executive Secretary


Dated at Chicago, Illinois, this 31st day of March 1978.
 r

              CARRIER MEMBERS' DISSEIGT TO AWARD N0. 21996

              DOCRF~ Nn-. W-219 (= SIBS)


      this case the referee granted pay for all time lost because of Carrier's failure to render the discipline within thirty days as provided in the Agreement. The Carrier was four days late in rendering its decision. This remedy goes beyond the scope of the Agreemeent, and in addition it does not have any basis in contract law. Rule 27(b) does not contain a specific penalty that nullifies the entire discipline proceeding for failure of the Carrier to render a decision within thirty days.

      It is a basic principle of the common law of damages that absent any srecif is penalty provision, a remedy for breach of contract trust be


    s

        limited to actual pro-ren damages.


            This principle has been specifically applied,to cases before `

      this Board where the Carrier has failed to notify the claimant of dis

      cipline within the proper time limit and there was no contractual penalty

      for same. In a well-reasoned opinion Referee Mabry stated in First

      Division Award 155?9:


        %ikrxise we find no merit to the contention that because the 'decision' here involved was not given- within fortyfive days from the date of the meeting at ·ahich the matter was discussed, as the rule requires, carrier's right to have its discipline upheld is lost. Tre rule arorides no penalty for failure to ccmlv strictL,r -ai~h ins terms, and, absent some snowing of pre juc,ice to cla_mant t:.e failure to reader such decision within forty-five days is not fatal to carrier's position. No prejudice is here claimed or shown." (Emphasis supplied). In an earlier First Division Award 338145 Referee Robertson made the following observation:

                                    DISSEM TO

                      2 _ AWARD 170. 21996


      "Notice of the discipline assessed was act delivered to claimant until seven days after hearing. The discipline rule requires that the result of the investigation be made known within five days. In all other respects the procedural requirements of the discipline rule were followed by Carrier.


"So long as the period of delay is so short, the failure
 of the Carrier to literally comply with the Agreement
 with respect to notice of result of hearing does not
 vitiate the entire proceeding. The letter of dismissal
 was dated November 3, 1948 (fire days after the date of
 thehearing). The record does not account for the delay
 in delivery. In any event, the Agreement will be satis
 fied if the Carrier is required to pay the claimant for
 those two days."
 Decisions such as the one in this case which impose a penalty for
 a technical violation where none is provided in the Agreement can lead to
 absurd results especially where the discipline imposed is just, warranted
 and necessary. The minority suspects referees would be hesitant to vitiatt
 the proceedings of a discipline case for a serious offense such as violence
 on a mere technicality where the discipline has the purpose of protecting.
 the Carrier's employees and property. This suggests that an expedient
 double standard might result unless the referee shows more forethought and
 wisdom than was shown here. As Referee Carter said in Third Division
 Award 2945, and Referee Lieberman in Third Division Award 19558:
 "Truth and technicality should be the controlling factor in: making decisions of this kind." Referee Schedler-recognized the underlying weakness of the reasoning and lack of wisdom behind decisions such as the instant one and recognized the potential 'or absurdity and injustice. He stated in Second Division
Award 2466:
                                  DISSENT TO

                    - 3 - AWARD NO. 21996


      "Admittedly the carrier exceeded by some three (3)

days the time limit of sixty (60) days within which
 it was to confirm in writing its decision. The
 organization contends that because of this breach
 the carrier is obligated to reinstate the claimants.
 The purpose of such a rule is to keep claims from
 groring stale and to expedite the proceedings covered
 by the rule. We find no merit in the contention that
 because of a few days' delay in issuing a statement the
 carrier has lost the right to have discipline upheld.
 There is no showing in the record that the claimants were
 inured by this brief delay. Most certainly the parties
 should attempt to stay within time limitations prescribed
 for procedural requirements, but the failure to do so
 cannot otherwise void the proper exercise of disciplinary
 control. Agreements of this kyrd regulating the exxPloyer
 eaplove relationship mast ^e given a reascr_so e, -rorKao e
 construction and not constr-771 so narrcwlv as o de at
 justice.
 T'he possibility of absurdity and injustice is one reason there is
 no penalty written in the contract for this type of technical violation.
 During disc:;ssion of the case the carrier cited Third Division
 Award 20423 (Lieberman). In Award 20423 Referee Lieberman held technical
 violations do not vitiate the entire discipline unless there is a penalty
 provision that provides same, and further the remedy is limited to proven
 prejudicial damage. Referee Lieberman stated:

      "At the outset we must point out that the disciplinary process in this industry does not follow the careful technical procedures required in criminal trials; on the other hand the rights of employes to due process and equity in the investigative process must be scrupulously preserved. The Board's function, in reviewing the disciplinary activity on the property, is of course restricted .....Clsimsnt's undenied guilt is significant in our consideration. The claim herein does not allege a violation of the Agreement in Carrier's error per se, but rather through the improper dismissal of claimant. Under these circumstances it would be entirely improper for this Board to reinstate claimant with substantial back pay is accordance with Article '. -Section 5-a; such justice could be considered. arbitrary and capricious (Award 1054?). It would be impossible to hold that the charges against claimant have not been sustained

DISC' TO
 AWARD N0. 21996
"and there is no contractual remedy provided for violations
 of Section 3 unless t ere ;was some negative affect on
 claimant's rights to due process. The claim st be
 denied."
 In an attempt to ignore Award 20423, and to rationalize his
 decision the referee in this case points to Third Division Award 21018
 also by Referee Lieberman. Evidently this referee feels he could ignore
 Award 20423 by insinuating, by citation of Award 21018, that Referee
 Lieberman reversed his earlier decision. This is not true. There is
 no inconsistency between the two and Award 2101$ can not lend any support
 to the erroneous decision here. Award 20423 still is directly on point
 for the decision the carrier urges. An examination of Award 21018
 reveals the fundamental distinction between it and the instant case.
 Award 21018 is a time limit on claims case and the rule in question in
 Award 2101$ contains a specific penalty for failure to observe certain
 time limit conditions. Many contracts provide similar specific
 penalties for failing to progress or disallow claims within certain
 bane limits, but in the instant case there is no similar *penalty provision.
 for failure to render a decision within "inn limits. The Award in the
 instant, case. and the few others like it ignore this fundamental distinct- .
 ion. The Referee here failed to recognize the reasoning behind and dis
 tinction between Award 2103.$ and Award 20423 and further casually by-passed
 the force of the ccmaran law principle on damages.
 In addition, this decision ignores the fact that a referee does not have the authority to add to the contract through the guise of inter pretation something that is not there. Ii' the parties had desired a
              DISSM TO


. 5 - AWARD N0. 21996

 penalty for delay in rendering a discipline decision, the written contract would so reflect this. The referee's rationale that the phrase in the Rule 2?(b) " .... decision will be. rendered...." is mandatory as opposed to

 directive is equally erroneous. The proper interpretation of

 word "will" would recognize it as directive in meaning. In Third Division Award 16172 the majority interbreted a discipline rule (Rule 24) that read in part the " .... decision in writing grill be rendered." The majority stated:

      "'The Claimant contends that under the provisions of Rule 24, an employe is provided with certain rights in instances where the Carrier Maces charges against him in connection with an alleged offense: That among these rights is that the hearing shall be held within 10 days from the date when charged with the offense or held from service ...."


      "The Carrier, on the other hand, contends that the provisions of Rule 24, with which we are concerned, are not mandatory,, but directory.


      "It is a well settled rule of lair that in determining as to whether a provtsion of an agreement is mandatory or directory, the end sought to be attained by the provisions of the agree ment is always important to be ecnsidered. One of the tests for determining whether the provisions of an agreement are mandatory is whether it contains negative words which renders the performance of the act improper if compliance is not made with the provisions of tye agreement. The absence of negative words tends to show that the language used is directory and not mandatory. 1h a negative need not be expressed but may be inferred. If the agreement ia!voses a

    _-oenalty for its violation, we mat reasonably assume that the

    °oarties ir..tende hat :t3 ^r!''?_Si~r15 Ce f^llowe'dl', a= hence

    the provisions are const=ed as being manaator tr. The fact

    that the agreement is framed in mandatory w;arils, such as

    'shall' or. 'must' is pct the determining factor as to whether

    it is mandatory cr directory,

                  DISSENT TO

                                    AWARD NO. 21996


"Rule 24 does not contain any negative words. It does not contain any language to the effect that the failure to comply with its provisions or terms *i void and or nsllify the result of a.^.y proceedings ad ~vursuant to an in accor - ance with its provisions. -!'t Imposes no :aenaity if its mrovisions are not followe . e hod; therefore, that the Drosions o . u a 24 are directory and not mandatory. " '"here are also many cases which hold in general that similar procedural errors and delays in discipline, such as delays in holding hearings, are not prejudicial and do not vitiate the entire proceedings. Those cases involving procedural delays hold that damages; if any, must be limited to the time of delay. See for instance, First Division Award 17, Third Division Awards 19842, 14348, 11775, and Second Division Award 636-0. The reasoning behind these awards, which have general relevance to this case, can best be paraphrased by a reading of the decision of the U, S. Court of Appeals, Fourth District. February 9, 1954. (210 F(2dl 812). The Court stated

      "The purpose of the ten-day provision is to expedite the proceedings for which the rule provides, not to serve as a limitation upon their being held; and the remedy for violation of that provision is damages for any delay that may have occurred, not reinstatement with an unassailable record or damages for an indeterminate period on the theory that the proceedings otherwise regularly held were a nullity. Collective bargaining agreements like other contracts are to be given a reasonable construction, not one which results in injustice and absurdity."

The Carrier strongly dissents to this Award in light of the principles and well-reasoned decisions discussed above. The proper decision in this case would have been to deny the claim because damages and prejudice due to the four da-r delay were not proven, and had they beer, the award should have limited back pay to the time of the delay.
                DISSENT TO


- T - AWARD 110. 21996

          Gil Vernon


              Euker


          a. Z. m fi


          J. ghmann