(Brotherhood of Maintenance of Way Employes PARTIES TO DISPUTE: (Burlington Northern Inc.

(1) The suspension of thirty (30) days imposed upon Section Foreman M. D. Laudert and his permanent disciplinary demotion to laborer for being absent from duty on January 31, 1977 was excessive, unwarranted, without just and sufficient cause, an abuse of justice and discretion and in violation of the Agreement (System File T-M-194C/MW-20 5/9/77).

 (2) Mr. M. D. Laudert's seniority as section foreman be restored and unimpaired, reimbursement be made for all wage loss suffered, including the difference between what he would have received at the section foreman's rate and what he was paid at the laborer's rate until he is returned to work as a section foreman with seniority as such unimpaired and he be reimbursed for mileage expense incurred traveling between his headquarters at Hawley, Minnesota and Staples, Minnesota on February 7, 1977."

 OPINION OF BOARD: Section Foreman M. D. Iaudert was demoted from
 foreman to laborer and suspended from the service of
 the Carrier for 30 days after an investigation wherein he was found to
 have absented himself from duty on January 31, 1977 without proper authority.

 At the outset the Organization takes the position that the ixroestigation was not properly held in that claimant was not given 5 days written notice of the investigation as provided in Rule 40 (C):





There is no question but that the claimant did not receive the notice of the investigation which was held on February 7, 1977 until February 4, 1977. At the commencement of the hearing the claimant's Organization representative objected to the holding of the hearing due to the defect in the notice.

 The Carrier takes the position that any defect in the timeliness of the notice was not prejudicial and hence should not be the basis for overturning the discipline assessed.

 While we find some language in Award 20238 that could be cited for the proposition that a failure to give the 5 days notice required by rule 40-C is not fatal unless shown to be prejudicial, we believe that the awards of this Board which hold the parties to their agreements with respect to time limits should be followed. The wording of the rile is clear; 5 days written notice is required. That is a bargained for right of an employe subject to discipline. In the instant case the employe being subject to discipline lay claim to that right at the outset of the hearing. iNhile holding the parties to the time limits set out in their agreements may from time to time work an injustice for either a carrier or claimant, we must apply the agreements as written and not by case law create exceptions which have not been agreed on by the parties.

 We will sustain the claim with the exception of the mileage claim for which we find no contractual basis.

        FINDLNGS: 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 Employer 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.

                      Award Number 22748 Page 3

                      Docket Number MW-22344

                      A W A R D


        Claim sustained in accordance with this Opinion.


                            NATIONAL RAILROAD ADJUSTMENT BOARD

                            By Order of Third Division


ATTEST;
        Executive Secretary


Dated at Chicago, Illinois, this 29th day of February 1980.