Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 28205
THIRD DIVISION Docket No. MW-28339
89-3-88-3-83
The Third Division consisted of the regular members and in
addition Referee George S. Roukis when award was rendered.

(Brotherhood of Maintenance of Way Employes PARTIES TO DISPUTE:


STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood that:

(1) The discipline imposed upon B&B Truck Driver J. L. Ralston was without just and sufficient cause and in violation of the Agreement (System File 8325 ##1642R/800-16-A-81).

(2) The Claimant's record shall be cleared of the charges leveled against him and he shall be compensated for all wage and benefit loss suffered."

FINDINGS:

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

The carrier or carriers and the employe or employes involved in this dispute are respectively carrier and employes within the meaning of the Railway Labor Act as approved June 21, 1934.

This Division of the Adjustment Board has jurisdiction over the dispute involved herein.



There are two basic issues in this dispute. Firstly, was there a procedural default when Carrier dated September 2, 1986, a statement advising Claimant that he had a right to a Hearing? Secondly, was this default mitigated, when the Organization's General Chairman requested a Hearing via letter dated October 1, 1986? For ready reference, Agreement Rule 13, which is pertinent hereto is referenced as follows:


Form 1 Award No. 28205
Page 2 Docket No. MW-28339
89-3-88-3-83
(b) An employee disciplined or dismissed shall have a fair
and impartial hearing, provided that a written request is
presented to the Roadmaster or Regional Engineer within 10
days after date of advice of discipline. Hearing shall be
granted within 10 days thereafter, and decision will be
rendered within 10 days after date of hearing."
In the case at bar, Claimant was assessed a discipline of ten (10)
working days suspension. He was not, however, advised of his right to a
Hearing. The General Chairman did not request a Hearing until October 1,
1986, well beyond the ten (10) days Hearing request period. By letter dated
October 15, 1986, Carrier's Regional Engineer for the Western Region pointedly
denied the General Chairman's request. He did so on the grounds that the re
quest exceeded the time limits set forth in Rule 13-6(b). In response, the
General Chairman filed a grievance on October 28, 1986, charging that Carrier
violated Rule 13-6(a). There was no response to this Claim until January 7,
1987, when Carrier denied the Claim. As part of its response, Carrier acknowl
edged that Rule 13-6(a) was not observed, but added that such omission was
merely a "minor oversight." By letter dated February 25, 1987, the General
Chairman criticized the content and tone of the January 7, 1987, letter and,
subsequently, by letter dated March 26, 1987, Claimant was apprised that a
Hearing would be held on April 9, 1987. A Hearing was held on April 9, 1987,
and predicated upon the Investigative record, Carrier upheld the discipline
assessed. In effect, Carrier concluded that Claimant was absent without per
mission during the period August 25, 1986, through August 28, 1986. Prior to
August 25, 1986, Claimant was on leave of absence and a participant in the
Employee Assistance Program.

In considering this case, particularly, the detailed comprehensive briefs submitted by both sides, the Board, of necessity, must conclude that a procedural violation occurred when Carrier failed to apprise Claimant of his right to a Hearing. It was not mitigated by the absence of a timely request pursuant to Rule 13-6(b). Even Carrier recognized a procedural flaw, when it characterized the omission a "minor oversight." However, Rule 13-6(a) contains unambiguous specific employee will be advised of his right to a Hearing. It is not discretionary language and requires that the employee be so advised. Also, the language does not say that the General Chairman will be advised of this right, although it would be normative procedure to inform said official of the disciplinary action.

In the case herein, the Board is impelled to note that the General Chairman was evidently not sent a copy of the September 2, 1986, disciplinary letter, since his name was not on a list of names designated to receive a copy of said letter. Consequently, it could be plausibly argued that a request for a Hearing from the General Chairman could not be submitted within ten (10) days after date of advice of discipline. As an appellate body, this Board is empowered to interpret and apply contested contract language, and thus consistent with our judicial Agreement language crafted by the parties. We cannot interpolate expansive Interpretations. For these reasons, we must sustain the Claim.
Form 1 Award No. 28205
Page 3 Docket No. MW-28339
89-3-88-3-83








Attest: ~~
Nancy J. e r - Executive Secretary

Dated at Chicago, Illinois, this 20th day of November 1989.