C:\AWARDS\OUT\2-06987.htm

Form 1 NATIOIJAL RAILROAD ADD,7JST?vIiED7 BOARD Award No. 6987 SECOiZ DIVISION Docket No. 6751-T 2-PCT-MA-'76

The Second Division consisted of the regular members and in addition Referee David f. Twomey when award was rendered.

( International Association of Machinists

( and Aerosnace Workers

Parties to Disuute: ( Penn. Central Transportation Company

Dispute: Claim of Employes:.

1. That the Carrier violated the controlling agreement by a1oclishing

Machinist Robert Hamilton's machinist welder position and'

subsequently reassigning the welding work he had been performing,

to the Boilermaker Craft.

2. That the Carrier be required -to restore the work -to the Machinist Craft and pay Machinist Hemilton three

(3)

hours' pay at his regular rate for INZarch

through May

1972, and every day thereafter until settlement of this case, on the basis of it being a continuing claim.

Findings:

The Second Division of the Adjustment Board, upon the whole record and a71 the evidence, finds that:

The carrier or carriers and the employe or employes involved in this dispute are respectively ca;^rier and e.-nploye within the meaning of the, Railway Labor Act as approved June 21,

19-34.

This Division of the Adjustment Board has jurisdiction over the dispute involved herein.

Parties to said dispute waived right of appearance at hearing thereon.

First we must consider the Carrier's procedural contention that the claim must be dismissed because it was not presented within the 60-day time limit specified in Dale 4-0-1(1)(A) of the Agreement. The Organization counters that the claim was filed as a "continuing claim" in accordance with Rule 4-0-1(1) (C) of the Agreement.

Item 1 of the Employees claim states:

"That the Carrier vJ.olated the controlling agreement by abolishing Machinist Robert Hamilton' s machinist-welder

.. position and subsequently, reassign:Inp the welding work he had

been performing, to the Boilerriaker Craft."

Form 1 Award No. 6987 Page 2 Docket No. 6751 -T 2-PCT-MA-'76 The Employees, on page 3, paragraph 3, of the Joint Submission of the Parties (Employes' Exhibit 10), state as follows: "As shown in Employes' Exhibit 'BI, the Company, effective October 22, 1971, abolished Claimant's Machinist Welder job. More important, however, is the fact that since October 22, 1971, the Company has assigned all welding work, including machinist welding, which is covered in Article X of the Scope of the Agreement, to Erwin J. Biel, mentioned previously, who is now a Boilexlnaker." It is most clear that the Employees believed that the abolishment of the Claimant's position and the subsequent alleged assignment of welding work to the Boilermaker craft all. occurred at once, or October 22, 1971. This Board has long held that a claim is not a continuous one where it is based on a specific act which occurred on a specific date. While a continuing liability may result, it is settled beyond question that this does not create a continuing claim. (See Third Division Awards 11167, 12984, 15691, 16125, 18667, 19972, 20631.) In this case the date of occurrence was October 22, 1971. The claim was not presented until May 8, 1972. Such filing was well beyond the: tune limits. On pages 4 and 5 of the Employes' Submission, the organization contends that the Claimant was continuously promised by the Carrier's local supervisor that his welding position would be reinstated, thus putting forth a rationale for the Claimant for not filing his claim until May 8, 1972. No probative evidence was presented to this Board to support this contention. Mere assertions and allegations certainly cannot be considered as proof. Since the claim was not presented within the time limit, the claim must be dismissed. A W A R D Claim dismissed. Attest: Executive Secretary National Railroad Adjustment Board

NATIONAL RAILROAD ADJUSTMENT BOARD

By Order of Second Division

By '

o arie Brasch - Adm:Lnistrative Assistant

Dated Thicago, Illinois, this 23rd day of January, 1976.

'C; I

it ~t

FEB 1

. ; AA Y(JtIN;_

TABOR MEMBERS' DISSENT TO--AWARD r;0. 6987

DOCK-13T NO 675

Award No. 6987 is not merely palpably erroneous but is so illogical as to depart from reason in the absurd interpretat.io:: of the Claims for compensation Rule 4-0-1.

The neutral stated in pertinent part:

"first we must consider the Carrier's procedural contention that the claim must be dismissed because it was not presented within the 60-day time limit specified in Rule 4-0-1 (1) (A) of~ the Agreement. The Organization counters that the claim was filed as a'continuing claim' in

accordance wit-h,

, , C y , ,-~,

au~c 41-0-1 (~) (~. , of the ~-..~aRc..~r:-:.. l~_Item 1 of the Employees claim states:

"That the Carrier violated the controlling agreement by abolishing Machinist Roliaert Yamilton's machinist-welder position arid subsequently, reassigning the welding work he had been performing, to the Boilermaker Craft."

For inexplicable reasons of his own he then proceeds to tG1:e

parts of Item 1 of the Claim-out of context by holding that

was

the Petitioner's position that the abolishing of the Claimant's

position and the subsequent al 1 edged assignment of ~:·~:Ir~inl~ work

to another craft all occurred at once on October 22, 1971, i\'othina

could be further from fact since ii: ;ass Ql ainl y stated in the

record of handling, also repea~%-edy poin~ec1 cat t-o :his neutral.

that tLZe abolishment it-self `;'as n"C)T.`cr

i.'.'t

"r" _'C)rdclrCe:

.:'i.:.:~:

P'?~r~J'~'..'

Such a matter of record is portrayed by the Carriers own abolishment notice of October 15, 1971, wherein is stated that this Machinist Welder position was abolished due to a decline in business and thereby permitted by Section 1-B of the Merger Protective Agreement. So the abolishment was correct but in the absence of set time limits for re-establishment of such abolished positions it becomes impossible to fix a hard and fast date for the "clock to start running" on time limit contentions.

this same issue the neutral went on to state:

"on pages 4 and 5 of the Employes' Submission, the organization contends that the Claimant was

continuously

promised by the Carrier's local supervisor that-his welding position would be

'---~` reinstated, thus putting forth a rationale for

the Claimant: for not filing his claim until May

8, 1972. No probative evidence was presented to

this Board to support this contention. Mere as

sertions and allegations certainly cannot be con- .

sidered as proof.

This contention was before the Carrier throughout the entire handling on the property, as well as in the Employes' Submission, and never refuted by the Carrier. It is therefore astonishing, as well as improper, for the neutral to now try to "hang an allegation tag" on it.. He is well aware that such an un--re!!;~.tea statement is regarded as fact before this or any Board.

In fact, the question posed to this neutral to rule on a time for reestabl islzmont of such a

decline in business .abol

ishirent and this is how that: issue and question was ducked.

_T_r:

an- event the Petitioners case was riot: based on the one and say.

time violation as asserted i^ th:.s d4.=issal Award. This neutral

.- 2 - (DISSENT TO Ai1ARD NO. 6987)

was furnished with a copy of his own Third Division Award No. 20614, wherein he held that there was no set time for re establishment of employe positions after a temporary force reduction caused by strike. That dispute was very similar to this instant case in this one regard. However, this neutral. chose for inexplicable reasons not to follow even his own precedents. When a neutral accepts an assignment of deadlocked cases it certainly must be with the intent to adjudicate them. The Railway Labor Act holds that such disputes are considered minor and then directs them to this Board for adjudication. For any neutral to dodge this. legally imposed responsibility through a fishing expedition for any and all Carrier specious arguments or technicalities,is certainly violating both the spirit and intent of this act. Previous holdings of this Division that were very much in point. on this issue were such as Referee Anrod in Awards 39'74 and 4130 in pertinent part: "It is a well-established rule of law generally observed in application and linterpretation of a collective bargaining agreement that such an agreement, as a safeguard of industrial and social peace, should be given a fair and liberal irter pretation consonant with its spirit and purpose - disregarding, a:; far as feasible, strict techni calities or undue legalism which would tend to deprive the agreement of its vitality and effect iveness. See: Yazoo & M.V.R. Co. v. webb, 65 F. 2d. 902, 903 (Ca--5, 1933) ; Arbitration Award in re Cameron Iron works, Inc., 25 LA 295, 299 (1955). Moreover, in interpreting and applying the grievance procedure incorporated iiprocdure a labor agreement, flex- (DISSENT TO AWARD ZJO. 6 957; ibility is of the essance in order equitably to meet a wide variety of situations in the ,light of the realities of industrial file. See: United Steelworkers of America v. Enterprise Kheel & Car Corp.# 363 U.S. 593, 597; 80 S. Ct. 1358, 1361 (1960). Award ho. 4130 then followed the same principles. This Referees` findings that this claim was not a continuous one, along with his cited precedents, are the result of twisted logic in complete disregard for the facts of record. This dismissal Award is based upon reasoning so absurd as to be a nullity and to which this vigorous dissent is directed. T G. R. De~ague Labor Men*er - 4 - (DISSENT TO AV~":TD 1,10.6^S7) .