E·`
Fore 1
NATIONAL RAILROAD ADJUSTMENT
BOARD Award No. 6756
SECOND DIVISION Docket No. 6592
2-LI-EW-174
The Second Division
consisted of
the regular members and in
addition Referee Irving R. Shapiro when award eras rendered.
( System Federation No. 156, Railway Employes'
( Department, A. F. of L. - C. I. 0.
Parties to Dispute: ( (Electrical Workers)
{ The Long Island Rail Road Company
Dispute: Claim of Eaplo,3res:
1. That the Long Island Rail Road Company violated Article V
of the August 21, 1954 Agreement
when the
Carrier's highest
officer. Mr. W. L. Schlager, Jr., failed to
decline, in
writing, the claim in behalf of Electrician
R.
C. Dee
foe service rendered on Sunday, June 18, 1972 in the amount
of six (6) hours. Claim was submitted to fir. Schlager on
October 16, 1972, acknowledged by
Mr. Schlager on
October 2b, 1972 and denied by Mr. SclRager 64 days
later
on
December 19, 1972.
°w
2. Without waiving the employes' position with respect to
the
Long Island Rail Road Company's violation of Article V,
Electrician R. C. Dee was deprived of the doable tame rate
of pay worked on Sunday, Jane I8, 1972 for six (6) boars when
he wee called to work on a fire at S.S.-PB02, Sannyside.
3. That, accordingly, Electrician
R.
C. Dee be compensated at
the double time rate
of
pay instead of the tile and
one half
rate he received for work performed on Sunday, June
l8v
1972.
Find inns:
?he Second Division of the Adjustment Board, neon
the whole
record
and all the evidence, finds that:
The carrier or carriers and the employe or employee 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
Beard has
jurisdiction over the
dispute involved herein.
Parties to said dispute waived right of appearance at hearing -
thereon.
Forty i Award No. 6756
Page 2 Docket N®. 6592
2-LI-EW-174 -
The substantive aspects of this claim have received extensive
consideration by Public Law Board No. 790 and this Division of the
National Railroad
Adjustment Board, (Awards 6508, 65489 6549, 6550,
6551, 6552, 6553, 6554, 6648, 6649, 6650, 6652, 6653, 6654, 6655,
6660, 6662, 6664, 6665, 6666, 6667, 6668, 6669
and
6670), and those
facets of the dispute oust by now be
considered
to have been laid to
rest. Award 6662
set
forth the guidelines
to
be
applied in
consideration of the merits of this claim
as follows:
"The language in Article VII is clear, meaningful
without any discernible ambiguity. It says the
number of 'employees regularly assigned to Sunday
work at the
greaent
time shall constitute
the
maximum rusher of employees who slay be so
assigned
without penalty' (Emphasis added). 'Present ties'
refers to the date when Article VII became effective,
in this case January 15, 1971. ?ha maximum rasher on
that date was 59;
it
regains 59 as long as Article VII
in its present fore continues to be an accepted rule;
that number is never exhausted for all time; it is
exhausted only on those Sundays when 59 are assigned.
to work."
At no tine in its handling of the claim `on the , property nor in ''
its submission or rebuttal to Carrier's Ex-Parts Submissions, does
Petitioner controvert, with probative evidence, the statement of
Carrier's Assistant Chief Engineer-Power 3a his denial o! claim letter
to Prfitionsrts Caxnl -Cbairmae
dates
August 319 On (Carrier Uhibit
No. 1) quoted on page 3 of Carrier's Ex-Parts Submission to the effect
that:
"If
the Agreement were to be interpreted as you contend,
this son still would not be entitled to doable tine.
The rusher of E.?. employees working on Sunday, Juno
18, 1972. was not greater than the number of E.?.
employees working on Sunday, January 17,-1971 which was
the qualifying Sunday for this rule..."
Petitioner merely avers, on page
,3 of its
Rebuttal,
that, "the
Claimant herein is in excess of each
saxisae
who were assigned to
Sunday work on the date Article VII became effective..." This does
not satisfy its burden, set forth hereiiiabove, and in adhering to the
Findings of our Award 6662, the Claim world be denied.
However, as shown is the first item of the "Statement of Claim",
Petitioner invokes an alleged violation of Carrier of Article V of
the August 21,
1954 Agreement as a basis for an Award sustaining this
claim# in that the written denial of claim by Carrier's highest officer
was issued , sixty-four days after presentation of appeal to him by the
Organization, citing
the following
provisions of
the
referred to
Article V
Form 1 Award No. 6756
page
3
, Docket No.
6592
2-LI-EW-' 74
" Should any such claim or grievance be disallowed,
the carrier shall, within 60 days from the date same
is filed, notify whoever filed the claim orr-grievance
(the employe 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.
(c) The requirements outlined in paragraphs (a) and
(b), pertaining to appeal by the employe 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."
Carrier, in turn cites paragraph (b) of said Article which
reads
"It is understood, however, that the parties may, by
w-:,~
agreement, at any stage of the handling of a claim
or grievance on the property, extend the 60-day
period for either a decision or appeal, up to and
including the highest officer of the Carrier
designated far that purpose."
and avers that an agreement waiving time limits for handling of
the claim on the property referring to letter of Petitioner's
General Chairman dated December 12, 1972 (Carrier Exhibit No. 19)
in which the following request is made; ..." due to our strike
against the Long Island Rail Road, it is our wish at this time
to waive all time limits on same until this strike is rendered."
Carrier's highest officer replied on December 20, 1972: "the
non-op strike currently in progress has diverted both parties
from their normal schedules; and, therefore, in observance of
your request, and in compliance with the usual and customary
on-property practice in instances of this nature, the time limit
provisions of the controlling agreement with respect to handling
of claims and grievances at all steps shall be waived for the
duration."
Petitioner argues that the Agreement to waive time limits
was exclusively with reference to the three claims specified in
the General Chairman's December 12, 1972-letter and the claim
herein was not one of them. Petitioner does not advert to
Carrier Exhibit No. 18, incorporated by reference in its ExParte Submission, in which the General Chairman, in a letter to
Carrier's highest officer, dated July 23,
1973,
states:
Form 1
Page
Award No. 6756
Docket No. 6592
2-LI-EW-' 74
"Due to the fifty (50) day strike on the Long
Island Rail Road starting November 30, 1972, the
mutual waiving of the time limit provisions of the
Controlling Agreement were farther extended to include
all on-property cases." (Emphasis supplied)
Thus it appears evident that an agreement in accordance
with Article Y(b) of the August 21, 1954 Agreement had been entered
into and such vas applicable to the claim herein.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest: Executive Secretary
National Railroad Adjustment Board
BY
R emarie Brasch - A ndnistrative Assistant
Dated at Chicago, Illinois, this 31st day of July, 1974.