Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 7182
SECOND DIVISION Docket No. 7016
2-LT-USofA ' 76
The Second Division consisted of the regular members and in
addition Referee Herbert L. Marx Jr. when award was rendered.
( United Steelworkers of America, APL-CIO
Parties to Dispute:
( The Lake Terminal Railroad Company
Dispute: Claim of Employes:
(1) That under the Agreement of September 27, 1955 and subsequently revised on August 21, 1957, and February 1, 1967;
specifically Rule 14 Section 3(h) 1 & 2 and the Memorandum
of Agreement between the Lake Terminal Railroad Company and
the United Steelworkers of America, dated November 23, 1974,
the Carrier violated the seniority and contractual rights of
Car Shop employee R. Riggen when it improperly denied him 1=he
right to the position of a Carrier Operator on November 26,
1974.
(2) That accordingly, the Carrier be ordered to compensate Mr.
Riggen, beginning on December 9, 1974, and for every day
thereafter that an employee, junior in seniority to Mr.
Riggen, was used as a Carrier Operator, eight (8) hours
pay a t the Carrier Operator's rate up to and including May 2,
1975, in addition to all other earnings, as penalty for this
violation.
F ind in gs
The Second Division of the Adjustment Board, upon the whole record
and all the evidence, 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.
f.'arties to said dispute were given due notice of hearing thereon.
The Carrier argues that the claim be dismissed because of the
Organization's failure to follow the specific procedure required in Rule 13,,
Section 1 (b), which states in part:
"If a disallowed claim or grievance is to be appealed, such appeal
must be in writing and must be taken within 60 days from receipt of
Form 1 Award No. 7182
itge 2 Docket No. 7016
2-LT-USofA '76
notice, and the representative of the Carrier shall be notified
in writing within that time of the rejection of his decision."
The Carrier claims, and the Organization does not deny, that the
Organization failed to follow the latter part of this procedure.
The Organization argues that such failure should be overlooked,
since the Carrier heard the matter at the second and third steps on the
property without raising the procedural defect as a bar to advancing the
the claim through the various steps. Further, the Organization claims
that the procedure, or lack thereof, which it followed had been practiced
for many years without objection from the Carrier.
Past practice, however ingrained and tolerated by the parties,
cannot he used as a defense to defeat clear and precise language of a
collective bargaining agreement. In some instances, such practice
might he valid basis to prevent one party from relying retroactively
on agreement language, but even this does not apply here.
The record shows that Carrier, on November 21, 1975, advised the
Organization in a previous matter that:
".
. . However, it has come to our attention that the Organization is not complying with Section 1, Paragraph (a) (the context
of this letter is sufficiently explicit for it to be understood
that the correct reference is to Paragraph (b) )under Rule 13 of
the current Schedule Agreement, in that written notice of rejection of written confirmation of decisions of denial by Company
representatives on each stcp of appeal has not been given within
the specified time limits prescribed thereunder . . . . Time claims
and/or grievances not properly handled in accordance with applicable rules on all stages of appeal, such as in the instant case,
will be considered closed in accordance with said applicable rules."
This letter was received by the Organization some months prior
to processing of the present claim. In the Board's view, this is sufficient
to alert the Organization that strict complicance with Rule 13 was to be
expected, and that the past practice of ignoring part of this procedure,
if indeed such was the past practice, would no longer be condoned.
Clear language of the .,Agreement,reinforced by prior fair warning
of its applicability, was sufficient to require the Organization to proceed strictly by the terms of the Agreement.
A W A R D
Claim dismissed.
t-nrm I Award No: 7182
Page 3 Docket No. 7016
2-LT-USofA ' 76
14ATIONAL
RAILROAD ADJUSTMENT BQARD
By Order of Second Division
Attest: Executive Secretary
National Railroad Adjustment Board
By:
imarie Brasch Administrative Assistant'
s
Dated at Chica0go, Illinois, this 30th day of November, 1976.