The Second Division consisted of the regular members and in
addition Referee Paul C. Dugan when award was rendered.
EMPLOYE'S STATEMENT OF FACTS: John Ruff worked for the Pennsylvania, Railroad as a pipe fitter-welder during the day and for the New York City Transit Authority at night. As a result of an accident at Sunnyside Yards on June 1, 1967, he sustained a back injury. Unable to perform the heavy manual work required of a pipe fitter-welder, Mr. Ruff was forced to stop work at the railroad. He tried, however, to continue his work as a motorman. After a few days, he was advised by his physician to discontinue working altogether.
A trial was subsequently held on August 8, 1967, charging Mr. Ruff with having represented himself as being unavailable for work for the Pennsylvania Railroad while actually working for the Transit Authority. Ruff was dismissed from service on August 28, 1967. His appeal to the Superintendent of Personnel was denied on October 9, 1967. Further appeal to the Manager of Labor Relations was sustained on November 13, 1967 and Mr. Ruff was reinstated. Ruff was permitted to return to work in December, 1967.
In the subject claim it is contended that claimant's earnings on his nonrailroad job should not be considered under Rule 7-A-1(d) because claimant's non-railroad job antedated his dismissal and continued after his restoration to service. This contention is wholly without agreement support. The explicit provisions of the rule are that "the amount he earned while out of service or otherwise employed" will be taken into consideration in determining whether any compensation is due. The rule does not exclude from consideration outside earnings in case the employe happened to have a non-railroad job both prior and subsequent to the period he is held out of service. This fallacious contention of the claimant amounts to an attempt to have your Board change Rule 7-A-1(d) by including therein an exception to fit Claimant's particular situation when in fact no such exception is found in the Rule. The awards cited above all recognize that the Board lacks authority to change an agreement rule or to disregard the explicit terms of the parties' agreement, and that if a rule is to be changed, it must be left to the parties to accomplish through the process of negotiation.
In conclusion, the carrier has shown that tae subject claim should be dismissed by your Board for the reason the claimant's notice of intent to file an ex parte submission with your Board was not timely made in accordance with the provisions of Rule 4-C-1(c) of the Agreement. Carrier has further shown that in the application of Rule 7-A-1 (d) it properly took into consideration the claimant's outside earnings during the period he was held out of service in determining whether claimant was entitled to any compensation under the rule.
Therefore, carrier respectfully submits that the claim should be dismissed, and if not dismissed, then denied.
FINDII"TGS: The Second Division of the Adjustment Board, upon the whole record and all the evidence, finds that:
The carrier or carriers and the e:rploye or employes involved in this dispute are respectively carrier and employe within the meaning of the Railway Labor Act as approved June 21, 1934.
Claimant, after a hearing, was on August 28, 1967, dismissed from Carrier's service for having represented himself to Carrier as being unavailable for work for Carrier due to a claimed personal injury while he was Pctually working for the New York City Transit Authority. His appeal to Carrier's Manager of Labor Relations was sustained on November 9, 1967 and Claimant was advised by N. P. Patterson, said Manager of Labor Relations, that:
Claimant contends that he is entitled to compensation from Carrier for time lost during his erroneous suspension from Carrier's service on the basis that since he had worked for the Transit Authority as well as Carrier, prior to his dismissal, the opportunity to work for the Transit Authority was in no way affected by his dismissal from Carrier's service; that Rule 7-A-1 applies to a situation in which an employe obtains new employment during a period of suspension or dismissal in place of Carrier's job during said suspension period, and that said rule does not apply to a circumstance where an employe held an outside job prior to his suspension or dismissal.
Carrier raises a procedural issue alleging that the claim filed with this Board is barred for failure to comply with the specific requirements of Rule 4-0-1(c) of the Agreement, the pertinent part thereof providing as follows:
The record shows that Claimant's appeal to Carrier's highest designated officer was denied by letter dated January 12, 1968, and said decision was reaffirmed by said officer of Carrier by letter dated January 31, 1968. Claimant did not institute proceedings before this Division of the National Railroad Adjustment Board until June 30, 1970, until more than two (2) years from the date of Carrier's denial of Claimant's claim by Carrier's highest designated officer, and thus clearly in violation of Rule 4-0-1(c) of the Agreement.
Claimant did not contend that there was any waiver by the Carrier in regard to enforcing the provisions of said Rule 4-0-1.