_ Form 1 NATIONAL RAILROAD ADJUSTMENT BQABD Award No. 6601
SEC r(`ND DIVISION Docket 1to. 6472-I
The Second Division consisted of the regular members and in '
addition Referee Irwin M. Lieberman when award was rendered.
( Lloyd E. Weiser, Carman, Petitioner
( Southern Pacific Transportation Company
( (Texas and Louisiana Lines)
Dispute: Claim of Petitioner
The question involved is whether the collective bargaining agreement
between Southern Pacific Company, Texas and Louisiana Lines
and
the
Employees Represented by System Federation No. 162, Railway Employes
Department, American Federation of Labor - CIO Mechanical Section thereof
provides for Air. Lloyd E. Weiser's re-employment on a light-duty basis.
The carrier states that there are no light-duty positions in the car
man area. Mr. Weiser contends that the company is breaching the
aforementioned agreement by not allowing Mr. Weiser's return to his
former position on a light-duty basis.
Mr. Weiser asserts Rules 20 and 117 as the applicable rules of the
present case.
a
Findings:
The Second Division of the Adjustment Board, upon the whole record
and
all the evidences 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 waived right of appearance at hearing thereon.
Claimant, returning to work after a layoff due to illness on July :L?,
1971., was required to submit to medical examination. He secured a doctor's release
which
specified
that he could only perform light work. On July 13, 1971 the
Superintendent refused to permit Claimant to report for duty with the limitation
prescribed by the physician on the alleged basis that there was no light duty in
the Carmen's classification. The ~Carmen's Organization
filed a grievance in behalf
of Claimant on August 22, 1971 which was progressed to the highest officer of Carrier
in accordance with the Agreement.
.
Form 1 Award No.
6607.
'n`
Page 2 Docket No. 6472-I
2-SPT(T&L)-I='73
In the General Chairman's letter to the Carrier's highest officer, dated
September
30, 1971,
he set forth the claim as follows:
"Therefore we are requesting that Carman L. E. Weiser be permitted
to return to his regular assignment as carman, and be compensated
for eight
(8)
hours pay at the pro rata rate for the dates
of July 13, 14, 17, 18, 19,
20 and 21st,
1971,
for not being allowed
to return to his regular assignment on July
13,
as set out in
provision of the current agreement in effect."
By letter dated November 26,
1971,
following a conference held on November
23,
1971,
Carrier's highest officer refused to accede to the Claim, stating however
that Carrier would return Claimant to service when it received medical advice that he
was able t o perform his duties without limitation.
On February 20,
1973
Claimant's attorney filed notice of intention to file
an ex parte submission, which submission was filed in MI-arch of
1973. In its
submission, Claimant's representative, inter alias alleged that Claimant
had
been
discharged on October 22,
1971
and further requested that he be reemployeed and paid
back pay from the date of discharge till the date of reemployment.
Rule 32 (c) of the Agreement provides:
"(c) The requirements outlined in paragraphs (a) and (b), pertaining;
to appeal by the employee and decision by the Carrier, shall govern in
appeals taken to each succeeding officer, except in cases of appeal.
from the decision of the highest officer designated by the Carrier to
handle such disputes. All claims or grievances involved in a decision
by the highest designated officer shall be barred unless within
9
months
from the date of said officer's decision proceedings are instituted)
by the employee or his duly authorized representative before the appropriate
Division of the National Railroad Adjustment Board or a system, group or
regional board of adjustment that has been agreed to by the parties; hereto
as provided in Section
3
Second of the Railimy Labor Act. It is understood, however, that the parties may by agreement in any particular case
extend the
9
months' period herein referred to."
Section
3,
First (i) of the Act provides:
"(i) The disputes between an employee or grouT of employees 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 carrier 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 Boar.. with a full statement
of the facts and all supporting data bearing upon the disputes."
Form 1 Award No. 6601
page 3 Docket No. 6472'-I
2-sPT(T&L)-1-' 73
It must be noted that the Claim, as submitted to this Board, differed
substantially from that processed on the property; thus the claim did not conform
to the requirements of Section 3 First (i) quoted above. Additionally, the claim
presented to the Board far exceeded the nine month time limit provision of Rule 32
since at best it was submitted some fifteen months after the final step on the
property. For the reasons indicated the claim is fatally flawed and we cannot
consider the merits; we must deny the claim.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMMT BOARD
By Order of Second Division
Attest: Executive Secretary
National Railroad Adjustment Board
By -r--;-;-~>. ~~
Dated at ChicaEp, Illinois, this 28th day of November, 1973.