Yardmaster Award #10

AWARD #	REFEREE	RAILROAD
Second Division Award 1738	Wenke	New York Central
Third Division Award 6856	Carter	Erie Railroad
Third Division Award 6872	Carter	Chicago Burlington & Quincy
Third Division Award 10240	Gray	Erie Railroad
Third Division Award 11225	Sheridan	Virginian Railway
Third Division Award 13491	Dorsey	Southern Pacific (T&L)
Third Division Award 16489	Perelson	Southern Railway
Third Division Award 23517	Roukis	Chesapeake and Ohio
Third Division Award 24891	Cohen	Chesapeake and Ohio
Third Division Award 29865	Fletcher	CSX (L&N)

"It is presumed that all of the contentions and arguments of the parties are merged in the written agreement. A party is not permitted to go behind his written agreement and offer special knowledge on the intent of plain provisions. It is conclusively presumed that all such matters were considered and incorporated in or left out of the agreement to the extent that the written contract shows. The integrity of written agreements requires that they be so construed. The meaning of a written agreement must be gathered from the language used in it where it is possible to do so. The meanings of written contracts are not ambulatory and subject to undisclosed or rejected intentions of either of the parties...."

"We must keep in mind at all times that a party is not permitted to go beyond his written Agreement. It must be presumed that all questions of importance were considered, and incorporated in or left out of the Agreement in question. The meaning of a written Agreement must be obtained from the language used in the Agreement...."

"The Board is a statutory body of limited jurisdiction. It may only interpret and apply collective bargaining agreements negotiated and executed by the disputants. It may not insert in such agreements its sense of equity or economic and labor relations predilections. Where the parties to an agreement, or one of them, find it wanting, recourse lies in the collective bargaining procedures prescribed in the Railway Labor Act."

"It is clear and unambiguous, and if it contains deficiencies detrimental to either party, we are committed to its provisions. This Board lacks authority to vary, alter, or amend its terms."

"...We are bound by the terms and provisions of the Agreement before us. We have no power or authority and we may not make new provisions, abrogate or alter existing provisions of the Agreement...."

"To determine the issue, we must look to the agreement made. It is presumed that all the negotiations of the parties, including their various contentions and agreements, are merged in the written agreement. Undisclosed or rejected intentions of either of the parties must give way to the agreement made as discerned from the language used...."

As quoted in Second Division Award No. 4506 (McDonald), Award No. 1738 (Wenke) of the Second Division held that:

"Under the situation existent on the carrier it may seem extremely harsh to require payment of this claim but we can only interpret and apply the provisions of the agreement the parties have entered into. We have no equity powers to relieve from a harsh situation nor is it our prerogative to rewrite the rules of an agreement by means of an award."

"OPINION OF BOARD: Pursuant to notification by the Carrier, the Claimant attended a hearing on August 19, 1981 with respect to a charge concerning an injury which he sustained due to his failure to follow `Safe Job Procedure'. After the hearing was held, the Carrier determined that the evidence adduced at the hearing was insufficient to uphold a finding of guilt and exonerated the Claimant. The issue in dispute arises from the Carrier's failure to furnish a transcript of the hearing to the Claimant and his representative, as demanded by the Organization.

"The terms of Rule 21 (c) are clear, unambiguous and unqualified. By its failure or refusal to furnish a transcript of the hearing held on August 19, 1981, the Carrier has violated Rule 21 (c). That the charges were not sustained and thus no discipline imposed against the Claimant is irrelevant to the application of Rule 21 (c). The terms of the Rule are in no way modified or nullified by the outcome of the hearing.

"Nor is it relevant that the Claimant has no need for the transcript in order to file an appeal. Again, it must be underscored that Rule 21 (c) is written in clear and simple language and the obligation by the Carrier, must be honored even though there is no need for an appeal. Third Division Award No. 23843.

"Moreover, it cannot be urged that since there was no `evidence developed at the hearing' to support the charge in the instant case, there is no requirement under Rule 21 (c) to provide a transcript. Rule 21 (c) provides in relevant part that a transcript of the evidence developed at the hearing shall be made***.' Rule 21 (c) does not distinguish between `evidence developed at the hearing' in support of, or not in support of, a charge. The terms of Rule 21 (c) are unqualified.

"A final matter which must be addressed is the Carrier's contention that the `transcript is nonexistent and therefore the issue is moot.' If the stenographer's notes of the hearing exist, the Carrier is required to have them transcribed. If, for some reason, it is impossible for the Carrier to satisfy its obligation under Rule 21 (c), the issue which has been raised cannot be considered moot. Indeed, the Board is of the view that a resolution of the issue is required, if only to establish the integrity of Rule 21 (c) and to be faithful to its terms.

"Carrier was obligated to recall Claimant in accordance with the Agreement's unambiguous procedures and Rule 5(c) does not provide an alternate notification process for temporary work assignments. The Agreement was violated and we will sustain the claim."

"Carrier also argued that because Claimants were working a four day workweek instead of a five day workweek, four working days' notice is all that would be required in their case. The Rule does not provide for a four working day notice in cases where employees only work four days per week. If the parties had intended that only four days' notice be given in such circumstances the Rule could easily have so stated. It does not. This Board is without authority to make such amendment in its language. We can only direct that the Rule be applied as drafted. Five working days' notice means five full working days' notice. Notice in writing means notice in writing and oral advice does not start the clock ticking." (Emphasis added)