The Second Division consisted of the regular members and in
addition Referee J. Harvey Daly when award was rendered.
SYSTEM FEDERATION NO. 97, RAILROAD EMPLOYES'
DEPARTMENT, A. F. of L. - C. I. O. (Electrical Workers)
THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY
-Coast Lines -
EMPLOYES' STATEMENT OF FACTS: Division Lineman J. E. Homewood, hereinafter referred to as the claimant, is regularly employed by the Atchison, Topeka and Santa Fe Railway Company, hereinafter referred to as the carrier, in their Coast Lines communications department, as a monthly rated employe assigned as a division lineman and with the hours of assignment of 8:00 A. M. to 12 Noon, 1:00 P. M. to 5:00 P. M., Monday through Friday, Saturday and Sunday rest days.
On January 9, 1962, the claimant was involved in an accident at a road crossing with a highway vehicle.
made their first appearance in the instant claim when they were incorporated in letter dated November 15, 1962, addressed by President Michael Fox of the Railway Employes' Department, to Executive Secretary Sassaman of the Second Division, National Railroad Adjustment Board, advising of the employes' intention to file an ex parte submission in this dispute. Those items are accordingly barred from consideration. There is moreover nothing contained in the agreement rules which provides what is therein requested by the employes.
The National Railroad Adjustment Board has consistently recognized and held that it is without authority to consider claims which differ from those initially presented to and handled with a carrier to a conclusion on the property. See, for example, Second Division Award 1810, involving this carrier, Third Division Awards 5077, 5283, 5380, 5501, 5502, and Fourth Division Award 826. The Adjustment Board has likewise consistently held that the scope of a claim to be considered by the Board cannot exceed the scope of the claim submitted and handled on the property. See for example Third Division Awards 5436, 6100, 6135 and others.
Furthermore, in the handling of this claim on the property, the employes contended that, in addition to compensation for all time lost, Claimant Homewood should be allowed to retain any compensation that he may have earned on the outside or with this company in any other capacity, and as moreover seemingly contemplated in Item 2 (b) of the claim as stated in Mr. Michael Fox's notification to the Adjustment Board, under date of November 15, 1962, of the employes' intention to file ex parte submission in this dispute. That contention is, of course, defeated by the provisions of Rule 33% (d) of the controlling agreement, reading:
The carrier states that if this claim is sustained, and the carrier emphatically asserts that the claim does not merit such consideration, nor does Mr. Homewood even merit reinstatement, any earnings which he has had since his dismissal should be deducted from the gross earnings he would have had with the carrier if he had not been dismissed.
In conclusion, the carrier asserts that the claim is wholly without support of the Agreement rules or merit for the reasons stated herein, and respectfully requests this Board to deny the claim in its entirety.
The carrier or carriers and the employe or employes involved in this dispute are respectively carrier and employe 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.
Claimant J. E. Homewood, a Carrier employe since January 6, 1941, was removed from his position of Lineman on February 12, 1962, following a track car accident on January 9, 1962, at the four-lane Gilbert Avenue Crossing in Fullerton, California.
The Organization contends that inasmuch as the Claimant did not violate the Carrier's Rule, he was unjustly removed from service.
The Carrier maintains that the Claimant violated "Company Rule 752-A, 1253, and the first two rules in General Notice Form 1015 Standard in Maintenance of Way Operating Rule Book."
The Gilbert Avenue Crossing "is protected by highway or street stop and go signals. It is also protected by mechanically operated crossing gates," which are actuated when the rail tracks are occupied. However, Track Cars are insulated and do not actuate grade crossing signal devices. Consequently, Track Car Operators "must observe the safety rules in proceeding over such crossings".
The Claimant admitted in the investigation that he was familiar with Rule 1253; he also admitted that he did not stop at the Gilbert Avenue Crossing but proceeded to cross it at "5 miles per hour" without giving "Highway traffic the right of way".
Based on the facts set forth above there is no doubt that the Claimant violated a Carrier Rule. Accordingly, the Board must deny this claim.