(Advance copy. The usual printed copies will be sent later.)
~m 1 NATIONAL ,dilIR`,AD ADJUSTMEUr BOARD Award No.
6352
SECOND DIVISION Docket No.
6208
2-SPT(PL)-CM-'72
The Second Division cunsisted of the regular members and in
addition Referee Irvii4z
a
. Shapiro when award was rendered.
( System Federation No. 114, Railway Employes'
( Department, A . F,, of L. -- C. I. 0.
Parties to Dispute: ( (Cal-rzen)
( Southern Pacific Transportation Company (Pacific Lines)
Dispute: Claim of Lployes:
1 - (a) That the Southern Pacific Transportation Company, hereinafter refered
to as Carrier, on October
4, 1970
knowingly violated Rules 31, 32,
52, Memorandum "A" MP&C Department Agreement, and Memorandum of
Agreement dated 12-8-1950 and
7-18-1962,
in using other than shop
force carmen to work on Tank Car S.C.C.X.
1476.
(b) That the Carries blaster :,11echanic has additionally violated. Rule
38(b)
current agreement when he failed to observe the 60 day tame limit for
his reply to the claim as presented by the Local Chairman.
2 - That Freight Carmen N. A. Chavez, B. C. Pacino and S. J. Disimoni,
hereinafter refered to as the Claimants, be compensated each for four
(4)
hours at the freight carmens rate of pay in effect on October
4,
1970,
account of said agreement rule violations.
Findings:
The Second Division of the Adjustment Board, upon the whole record and all the
evidence,finds that:
The carrier or carrJe rs 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 waived right of appearance at hearing thereon.
Petitioner, alleging violations on Sunday, October
4, 1970,
of certain agreements between it and the Carrier relative to assignment of Carmen at Carrier's Los
Angeles Car Repair Plant, seeks compensation for claimants, who it contends are the
employees who should have been called upon to do the work and were not. It further
alleges that its claim must be sustained in that Carrier failed to comply with the
time limits for disallowance of claims or grievances as set forth in Rule
38
(b)
the Controlling Agreement between the parties.
Form 1 Award No.
6352
Page 2 Docket No.
6208
2-SPT(PL)-CM-"Tc '
Rule
38
(b) reads
"Rule
38.
(b) A claim or grievance may be presented in writing by the
duly authorized. committee to the master mechanic (to shop superintendent
in General Shops), provided said written claim or grievance is presented
within sixty (60) days from the date of the occurrence on which the claim
or grievance is based. Should any such claim or grievance be disallowed,
the Carrier shall, within sixty
(60)
days from the date same is filed,
notify whoever filed the claim or grievance (the employee or his
representative), in writing of the reasons for such disallowance. If
not so notified, the claim or grievance shall be allowed as presented, but
this shall not be considered as a precedent or waiver of the:contentions
of the Carrier as to other similar claims or grievances..." .
The grievance and claim, dated October 10, 1970, was forwarded. by mail that
date to the Carrier's Master Mechanic in Los Angeles, California, by the Local Chairman
of the Organization. The Master Mechanic disallowed. the claim by letter dated December
9., 1970.
Petitioner claims that the Master Mechanic's letter was not received by the Local
Chairman until December 14, 1970, sixty five
(65)
days after date that the Local
Chairman sent his claim letter, and. therefore, pursuant to- Rule
38
(b), "the claim
shall be allowed. as presented...". The Carrier avers that the letter dated Decemb
-.9.
1970, was posted in the regular Ccxnpany mail service, identically with the manner
7,:
correspondence had been transmitted to the Local Chairman, who works in Carrier's Los
Angeles Car Repair Plant. On Thursday, December 10,
1970,
the Local Chairman did not
work; a nationwide rail strike occurred on that day and with his rest days following,
actual receipt of Carrier's reply by him might not have happened until Monday,
December
14. _
Time limit problems in connection with Rule
38
(b) have been the subject of
a number of Awards ®f this and other Divisions of the Board. (Second
Division 3541;
Third Division 10490,
11575, 13270
and
16537)
In essence, our holdings have carried
forward established concepts of law relating to notice. The principle is.that notice
is effected upon the mailing or posting thereof. Adams v. Lindsell,
In
.the
.Kings
Bench,
1818;
also 1 Restatement of the Law of Contracts
9.,
Section
64,
American Law
Institute Publishers, St. Paul, Minnesota. Applying this doctrine to the instant
case., we find that posting of the letter of disallowance for delivery on December
9,
1970,
was on the sixtieth day from the day the claim was initiated. by the Local
Chairman and met the requirements of the Rule.
In the absence ofprobative evidence to the contrary, we have consistently
held that we will belif.Ye in the veracity of the parties. _
As to the claim of a violation of the assignment rules and Memoranda of Agreement, the Carrier set forth that the actual repairs were. being performed on a
refrigerator car loaded with perishables at Santa Barbara.,-California. An emergency
road crew composed of three Los Angeles Division Carmen were. dispatched to the site
of the disabled equipment. They were told to bring with them a pair of.,40 ton,.
5 x 9
plain bearing wheels which were needed. to replace those on the refrigerator
car before it could be moved. A search by the crew of the stock of wheels and
axles at the Car Repair Plant and the one-spot car repair facility failed to turn
up the needed wheels. However, a badly damaged tank car awaiting disposal to a
scrap dealer was standing in the Car Repair Plant. It had. the correct size parts
Form 1
?age 3
Award 140. 6352
Docket No. 620$
2-SPT(PL)-CM-''r.'.
needed for the repair. The road repair crew removed the wheels therefrom, transported them to Santa Barbara and repaired the disabled refrigerator car. Because
of the nature of the contents, it was essential that the work be done promptly
and expeditiously. There were no Carmen on duty on Sunday, October
4,
at the _
Car Repair Plant. Delay would. have jeopardized the entire load which warranted
emergency treatment.
The record discloses that all of the above was befom the Petitioner throughout
the processing of its claim on the property. Neither in its submission or rebuttal,,
did it endeavor to controvert the assertions of the Carrier summarized hereinabove.
In numerous Awards, we have sustained the right of Management to use their best
judgement to overccme emergency situations similar to that faced by the Carrier herein
on October
4.
The need to protect the products placed in the railroad's care for
shipment is essential if the industry is to survive against competitive modes of
transportation, a concern not only to the Management, but to the employees whose
livelihood is dependent upon continued use of rail. To have held up the road crew
while seeking out the claimants and get them to leave their rest day activities would
have caused undue delay and possibly substantial losses. We cannot find anything
in the Petitioner's presentation which would i-rarrant ordering such an approach to
its responsibilities by the Carrier.
A W A R D
Claims denied.
Attest:
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Ag&~
Executive Secretary
Dated at Chicago, Illinois, this 13th day of July, 1972.