(American Train Dispatchers Association PARTIES 'in DISPUTE:

STATEMENT OF CLAIM: Claim of the American Train Dispatchers Association that:

 (e) The Seaboard Coast Line Railroad Company (hereinafter referred to as "Carrier") violated the current Agreement, Articles LY(a) and (b) thereof in particular, when 30 days (later reduced to 10 days) as the result of as investigation held February 20, 1980.

 (b) The Carrier shall now pay Claimant Green for all time lost and clear his personal record of ell reference to the investigation and discipline assessed.

 OPINION OF BOARD: The incident over which this claim arose occurred on
 January 30, 1980 when claimant was working the first trick north end Train Dispatcher position at Tampa, Florida. The territory covered by this assignment extends from Tampa to Jacksonville and includes Sanford, Florida. The incident is reported is the Carrier's sutmission as follows:





On February 4, 1980, Tampa Division Superintendent (berry wrote a letter to claimant, Sanford Operator and the train crews assigned to Trains 87 and 88 jointly as follows:




Because of postponement requested by the Ur'J(E) Local Chairman, Superintendent Cherry wrote a joint letter on the following date, February 5, 1980, to each of the principals including the claimant as follows:





The investigation was held on February 20, 1980 as rescheduled. In a letter dated March 10, 1980 claimant was charged with failure to comply with Rule 581 and was suspended for a period of 30 days. The suspension was later reduced on appeal to 10 days.

 Articles I7L(a) and (b) of the applicable labor agreement, on which the claim is based are quoted below:








The sole argument of the Organization against the discipline is the alleged violation by the Carrier of the time limit provisions of Article IX. Thus, we note is Organization's Statement of Position:



This position was first enunciated during the Investigation on February 20 and has been.consisteatly adhered to is subsequent handling of the dispute through the various appeals steps on the property. Carrier's response to this position is contained is its letter of April 25, 1980 over the signature of D. C. Sheldon, Carrier's highest appeals officer:

In connection with the stated positions of the two sides it is important '_o note that neither claimant nor the Organization made any complaint over the postponement from February 6, 1980 to February 20, 1980. The Carrier notified all concerned of the postponement by letter of February 5, 1980. The first complaint made by the Organization over the postponement was not made until the f on February 20, 1980. The complaint was made by A. T. Storey, General Char me.a, American Train Dispatchers Association. On the basis of this·complaia he also stated at conclusion of the investigation hearing, that he did not consider the investigation to have been fair and impartial.

 Carrier admits there may have been a technical violation of time limit provisions of Article 17C (b~ but points out that there were a great number of employees involved in the incident, especially the engine crews and that it would not have been possible to conduct a fair and impartial hearing without their presence and testimony at the hearing. Substantiating this point it is noted t is the hearing including the various employs representatives. It lasted from 9:45 AM to 12:05 PM sad included testimony; direct and cross-examination of the many persons pr requirement of Article IC(b) is not sustained by the facts, prior awards of the Board, nor a reasonable consideration of the overall issues involved.

 In the first place it is necessary to distinguish between the ten-day requirement, a procedural provision and the substantive requirement that he be granted a fair and impartial investigation. There are mart' decisions sustaining the principle that procedural flaws do not invalidate substantive considerations. A particular case is point is a court action 210 Fed tad 812 (1954) involving a dispute on the ACL v BRAC:






In this case it is noted the postponement was not a deliberate or dilatory action of the Carriers nor did the postponement prejudice the rights of the claimant to a fair and impartial hearing. The postponement granted by the Carrier on request of the representative of the UJ.'IJ(E) was reasonable and necessary. If claimant or his representative had any objection to the postponement they had plenty of time to register objection is the period of two wee 6, the date originally set for the investigation and February 20, when it was actually held. Contention that the postponemeatj, a procedural point, resulted in claimant being denied a fair and impartial hearing, an important substantive point, flies is the fac provisions of the Article IX(b). It was patently unreasonable to develop facts determine cause sad establish claimant's responsibility, if any, for Trains Nos. 87-88 improperly occupying the same blocks at Sanford-Rands without the participation in the investigation of all the manly employee involved.

 At the time the notice of investigation was issued to all involved (claimant., the operator and known as fact where responsibility rested for the highly serious situation of two trains facing each other and brought to a stop when only some 35 to 40 car lengths apart thus avoiding a possible head-on collision with all the potential loss damage and injury or death to passengers employee and property. Testimony at the hearing and claimant's frank admission of his actions clearl the circumstances the discipline assessed cannot be properly characterized as excessive arbitrary or unfair. Added to this is the fact that the original 30-day suspension was reduced on appeal to 10 days with Carrier comment as to claimant's good attitude.

 To conclude that failure to hold the investigation within the 10 days specified in the rule was basis for excusing recognition of claimant's responsibility would absurdity in recognition of the essentials of the requirement for a fair and impartial hearing. Claimant was not prejudiced by the delay, did not make timely protest against Carrier action in granting the delay although he had some two weeks to do so between the time originally set for the investigation and the date on which it was actually held. The delay was for good and sufficient reasons and claimant's silence during that two-week period amounts to tacit agreement with Carrier's action in granting the delay. This conclusion accords with that reached is Award No. 17167, a bird Division case wherein it states:
                      Docket Number TD-24342


        "Claimant's failure to object to the postponement would lead a reasonable men to believe that Claimant agreed to the postponement."


Nor is it reasonable to conclude that provisions of the rule for a hearing within tea days is a mandatory requirement rather than directory.

 We agree with the reasoning on this point set forth in Award No. 16172, another Third Divisidn case, as follows:

        "It is a well settled rule of law that in determining as to whether a provision of as agreement is mandatory or directory, the end sought to be attained by the provisions of the agreement is always important to be considered. 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 the agreement. The absence of negative words tends to show that the language used is directory and not mandatory. The negative need not be expressed but may be inferred. If the agreement imposes a penalty far its violation, we may reasonably assume that the parties intended that its provisions be followed, and hence the provisions are construed as being mandatory. The fact that the agreement is framed is mandatory words, such as 'shall' or 'must' is not the determining factor as to whether it is mandatory or directory."


Article IR(b) of the Agreement in this case does not contain any such negative words. Thus, for the same reasons cited above ova conclude that the provisions of Article IX(b) are directory rather than mandatory. On the basis of the discussion of this case as contained herein and precedent decisions reviewed it must be concluded that the delay in the investigation was justified because of the emergency nature of the events involved. The rights of the claimant were not prejudiced by the postponement.

        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 Employee involved in this dispute are respectively Carrier and Employee within the meaning of the Railway labor Act, as approved June 21, 1934;
 Award Number 24084
 Docket Number TD-24342

 Page 7

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

        That the Agreement was not violated.


A W A R D
Claim denied.

 NATIONAL RAILROAD AIaTUSU1ENT BOARD
 By Order of Third Division

 ATTEST: Acting Executive Secretary
 National Railroad Adjustment Board

 By
 4semarie Brasch - Administrative Assistant

 Dated at Chicago., Illinois this 5th day of January 1983.

LABOR MEMBER'S DISSENT

TO

Award 24084, Docket TD-24342

(Referee Schoonover)


The Carrier in this case failed to hold the investigation within 10 days after notice, in contravention of the first sentence of Article IX(b):

    "A train dispatcher against whom charges are preferred, or who may consider himself unjustly treated, shall be granted a fair and impartial investigation before the Superintendent, or his designated representative, within ten (10) days after notice by either party."


A protest was made at the beginning of the investigation and the employees clung to their position throughout handling of the dispute, both on and off the property.

 T10-:rd Division Award 19275 (Edgett) treated the identical circumstances, same parties, same agreement, and held:

    "The record is clear that the investigation was not conducted within the 10-day time limitation is no showing that the time limit was extended by Agreement between the Carrier and the dispatcher o that the Carrier attempted to obtain such an Agreement. The Board must apply the Agreement as written, and as the procedural requirements were clearly violated by the the claim on this basis, without passing-upon the question as to the responsibility on the part of the claimant for the accident involved."


It was further demonstrated to the majority that on-property handling of two similar disputes in 1973 and 1979 (subsequent to adoption of Award 19275) resulted in sustained appeals for the same reason, i.e., untimely held investigations.

 Other supporting Third Division Awards given the Referee were 8432, 11340, 11757, 14496, 16262, 16586, 16632, 17145, 18536, 21996, 22162, 22258, 22682, 22898, 23042, 23082, 23459, 23482, and 23496. The majority made no reference in Award 24084 to any of the decisions referred to in this and the preceding paragraphs, not even to challenge their logic.

    The matter was resolved on this property in Third Division Award 19275,

but the majority not only disregarded the principles set forth in Third Di
 vision Awards 22206 and 22547, that the dispute resolution-process is strength
 ened and made far more reliable if previous awards are accepted as determi
 native of new disputes which involve identical agreement provisions and fact
 circumstances, as well as the same parties; but it also ignored the fact
 that Award 19275 is a part of the parties' agreement, which~fact is epito
 mized by the following Awards.

 Third Division Award 2526 (Blake):

    ". . . Whatever may be said of the soundness of our construction of the contract, our conclusion is impelled by Award No. -1852. That involved a dispute between the same parties under the same contract and upon essentially indistinguishable facts. A different conclusion than we have reached w

Labor Member's Dissent to Award 24084, Docket TD-24342, continued
    rule the decision in that Award. To do this would be subversive of the fundamental purpose for which this Board was created and for which it exists: settling of disputes. When a contract has been construed in an award the decision should be accepted as binding in subsequent identical disputes arising between the same parties under the same agreement."


Third Division Award 5133 (Coffey):

    ". . . It does not admit of dispute that the Board's interpretation of rules becomes a part of the and purposes as though written into the rule book. Thus, the parties are governed by Award 4018, subject to valid distinctions on the facts and rules at issue, or until the weight of judicial opinion shifts . . . ."


Third Division Award 15358 (Stark):

    "It is important, unquestionably, that some decisions be considered controlling. Were that not the case, no issue would ever be finally settled, the purposes of the Railway Labor Act would be frustrated, and litigation would be endless. The Board, including the Referees who, from time to time, participate in the decision-faking process, has a responsibility to the parties to insure a continuity o? basic principles. One such principle, firmly rooted in labor-management relations and grievance adjudication, is that a controlling decisi be disturbed or overturned. Certainly there are exceptions to this principle: There may be 'palpable error' in the prior decision; the decision may not contain su of comparison; the decision may omit the reasoning of the Board, thus diminishing its usefulness. However, if there is a truly controlling decision, it should normally be given truly controlling weight, regardless whether subse or disagree, or whether, if confronted initially with the same issue, they would have decided otherwise.


      These findings with respect to the importance of controlling decisions are not novel. Similar ex in many Board decisions, including Awards 5133, 10911, 4788, 8458 and 13623, among others."


Third Division Award 23589 (Marx):

    "The Board reasserts here the principle which has consistently guided the Board in the past -- n and agreement, is strengthened and made far more reliable if previous awards are accepted as determinative of new disputes which involve identical agreement provisions and fact circumstances (not to mention, as here, the same parties)."

Labor Member's Dissent to Award 24084, Docket TD-24342, continued
Fourth Division Award 3443 (J. A. Sickles):

    "Whether phrased in terms of 'res judicata'_'stare decisis' or any other legal terminology, the best ends of labor-management relations are served by a basic predictibility of Awards, especially when a dispute involves the same parties, same rules and same basic evidence. Accordingly, the author of this Award is not d a prior Award, absent some compelling showing of error."


See also Third Division Awards 6833, 7967, and 11790.

 The Carrier argued, and the majority agreed, "Claimant . . . did not make timely protest against Carrier action in granting the delay although he had some two weeks to do so between the time originally set for the investigation and the date on silence during that two-week period amounts to tacit agreement with Carrier's action in granting the delay." But the Third Division held, in Award 22258:

    "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."


See also Third Division Awards 16121 and 16678.

 The majority errantly held that the time limit provision is directory rather than mandatory, and judiced by the postponement." By contrast, the same Carrier argued in its submission to Public Law Board No. 2616, Case No. 3, with respect to the same agreement:

        "Article IX (c) of the Schedule Agreement provides that

    if any appeal is taken it must be filed in writing within fif

    teen (1S) a s after the date of decision. No appeal was made

    of Superintendent Satterwhite's decision within the time limits

    established in the agreement, therefore, the case was closed

    forevermore." (Underscoring in submission).


    Award No. 24084 is an inexcusable aberration. It would open the door

for either party to treat with contempt any agreed-upon time limit provi
 sion which does not have attached to it a penalty for violation. The con
 cept is a ridiculous one which can only contribute to disorder, perplexi
 ty, and disarray in the parties' dealings. _

 Worse than that, the majority has fashioned an award that fails to conform or confine the division to matters within its jurisdiction when it ignored an interpretation of the agreement already rendered by this division, which is binding on the agreement itself.

                        R. J. Irvin

                        Labor Member