NATIONAL RAILROAD ADJUSTMENT BOARD
PARTIES TO DISPUTE:
LUTHER SELBY, JR., Petitioner
PENN CENTRAL (NYC)
DISPUTE:
CLAIM OF EMPLOYES:
That the Carrier violated the current agreement by abolishing
the position of Radio Maintainer, Job No. 117, worked by Luther
Selby, Jr., at Sharonville, Ohio, with rest days of Sunday and Monday and in the same Bulletin, No. 2, dated March 23, 1966, reestablishing Job No. 117 with rest days of Monday and Tuesday.
That the Carrier compensate the claimant, Luther Selby, Jr.,
by honoring the continuous time claims submitted by Mr. Selby and
supported by the Local Committee for all Sunday work performed by
Mr. Selby since the dispute developed at the time and one-half rate.
That the Carrier compensate the claimant, Luther Selby, Jr.,
at the pro-rate for being deprived of work on Tuesdays of his
normal work week since the inception of this dispute.
EMPLOYES' STATEMENT OF FACTS: These facts to remain the
same as those submitted by System Federation No. 54, AFL-CIO (Electrical
Workers) simultaneously with the New York Central Railroad. See Exhibit No. 1.
POSITION OF EMPLOYES: To remain the same as those submitted
by System Federation No. 54, AFL-CIO (Electrical Workers) simultaneously
with the New York Central Railroad. See Exhibit No. 2, and to include these
conclusions. Due to Mr. W. A. Smith's statement:
"Mr. Selby, you are being screwed and you are not going to get
kissed!"
See Exhibit No. 4. I conclude that Mr. Smith felt that he could stop any
grievance that I might submit in this matter. I am a salaried employe and
receive the overtime rate for work performed on Sundays and holidays only.
Other than this I do not receive any pay at all regardless of the number of
overtime hours I worked.
In summary, the Carrier reiterates that this claim has not been handled
in accordance with the Schedule Agreement and the Railway Labor Act and,
therefore, must be dismissed by your Board. In any event, the Carrier submits that an operational problem existed which necessitated the changing of
the rest days of Job No. 117. The Carrier's action in this case was in
accordance with Rule 1 of the Schedule Agreement. Furthermore, if your
Board should find, contrary to the facts, that the Schedule Agreement was
violated, any claim that the Claimant might have must cease on February
20, 1967, the date the Claimant was awarded Position No. 98.
In view of the foregoing, the Carrier respectfully requests your Board
to dismiss or deny this claim.
FINDINGS: The Second 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 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.
Parties to said dispute were given due notice of hearing thereon.
The Carrier in their submission to this Board state the following:
"Subsequently, z: grievance and penalty time claim was filed on
behalf of the Claimant, alleging that no operational problem existed
which justifid the changing of the rest days of Job No. 117 from
Sunday «nd Monday to Monday and Tuesday. Such grievance was
handled up to anal including the District Engineer-Communications
and Signals, the highest local official designated to handle grievances. Local Joint Submissions were prepared by the Assistant General Chairman, I.B.E.W., and the District Engineer for handling between the General Chairman and the Carrier's Final Appeals Officer.
A copy of the Joint Submission is attached as Exhibit A. IIo%vever,
the claim was never docketed by the General Chairman for hearing
and further handling with the Carrier's Final Appeals Officer."
The E::;ployss, is: rebu,tr:l to this staten:,~3nt, state the L)llc.-;ing:
"In the Carrier's Statement of Facts they contend that the joint
submission by the Assistant General Chairman, I.B.E.W., and the
District Engineer, were not presented to the next higher officer designated to handle this case.
i contend that this case was presented to the Director of Communications, the next highest officer to handle this case. This was
done prior to 1968, and to this date this office has never acted on
this case, either to deny the claim or approve the claim for payment. I her~,·by request the Board to rule undue delay, and hear this
case on its merits."
The enlployes admit that the dispute was not handled with the Carrier's Final Appeals Officer in keeping with the Agreement Rule 32 (b),
which -cads:
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"(b) Should the case remain unsettled after conference with the
highest local official, at the point at which the grievance originated,
a joint statement shall be prepared and signed by such local official and duly authorized local committee, or its accredited representatives, covering the facts, the employe's position and the position of such official, and submitted to the next higher official and
general committee representative. If a decision adverse to the employe is rendered by the higher official and such decision is unsatisfactory, the duly authorized general committee, or its accredited
representative, may then take the case to the next higher officials, in
respective order, up to and including the highest authority designated
to handle such macters."
The Railway Labor Act provides that a dispute has to be handled in the
usual manner up to and including the top officer of the Carrier designated to
handle disputes before it can be handled by this Board, as Section 3, First (i)
reads as follows:
"(i) The disputes between an employe or group of employes and
a carrier or carriers growing out of grievances or out of the interpretation or application of agreements concerning rates of pay, rules,
or working conditions, including cases pending and unadjusted on the
date of approval of this Act, shall be handled in the usual manner
up to and including the chief operating officer of the carri^r designated to handle such disputes; but, failing to reach an adjustment
in this manner, the disputes may be referred by petition of the parties or by either party to the appropriate division of the Adjustment
Board with a full statement of the facts and all supporting data bearing upon the disputes."
The subject matter of this claim was not handled with the highest
officer
of the Carrier designated to handle this dispute.
AWARD
Claim dismissed.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of SECOND DIVISION
ATTEST: E. A. Killeen
Executive Secretary
Dated at Chicago, Illinois, this 10th day of September, 1971.
Keenan Printing Co., Chicago, Ill. Printed in
U.S.A.
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