Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No.
7261
SECOND DIVISION Docket No.
6947-I
2-B&O-I-'77
The Second Division consisted of the regular members and in
addition Referee C. Robert Roadley when award was rendered.
( Shirley P. Getty
Parties to Dispute:
( Baltimore and Ohio Railroad Company
Dispute: Claim of Employes:
The Baltimore and Ohio Railroad Company, Chessie System, has
improperly refused to permit Mr. Shirley P. Getty, who is physically
able, to resume service as a machinist with the Railroad. Mr. Getty
has been found physically qualified to resume service as a machinist
by independent medical doctors, but the Railroad arbitrarily continues
to deny him the right to return to work.
Findings:
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.
Parties to said dispute were given due notice of hearing thereon.
The record shows that the initial claim, as submitted on the property,
was in the form of a letter from Claimant's counsel to the Carrier, dated
July
25, 1973.
The letter stated, in pertinent part, as follows:
"...
On behalf of our client, we, therefore, request that the
appropriate steps be taken promptly to reinstate Mr. Getty
with all seniority rights and benefits .
...if such action to allow our client to return to work is
not initiated within one month, we shall immediately file
a lawsuit and commence other appropriate legal proceedings
to secure his reinstatement. In connection with such legal
action, claims shall be made for lost compensation and
other benefits which our client would have received, if
he had not been wrongfully refused employment." (emphasis
added)
The foregoing request for reinstatement was declined by the Carrier,
by letter to counsel dated August
13, 1973,
stating, in part, "that Mr.
Getty is not physically qualified to perform railroad service." This letter
was written by Mr. W. D. Eyerly, Superintendent Shops.
Form 1 Award No. 7261'
Page
2
Docket No.
6947-I
2-B&0-z-'77
On August 26, 1974, counsel for the Claimant next wrote to Carrier and
stated, in part, as follows:
"... On behalf of our client, we, therefore, request that the
appropriate steps be taken promptly to reinstate Mr. Getty
with all seniority rights and benefits."
Under date of December
5,
1974, counsel for Claimant wrote the Carrier's
Assistant Vice President-Labor Relations and stated, in part:
"We hereby appeal from the decision of Mr. Eyerly and request
reinstatement of Mr. Getty and all of his rights and benefits
and make claim for lost wages and other benefits due him..."
(emphasis added
Finally, the "statement of claim" as submitted to the Adjustment Board
by counsel in behalf of Claimant, reads as follows:
"Briefly, the question involved is whether the Baltimore
and Ohio Railroad Company, Chessie System, may continue
to refuse to permit Mr. Getty, who is physically able,
to resume service as a machinist with the railroad.
Mr. Getty has been found physically qualified to resume
service as a machinist by independent medical doctors,
but the railroad arbitrarily denies him the right to
return to work."
A review of the foregoing chronology clearly highlights the following
inconsistencies:
1. The July
25,
1973 letter refers solelv to seniority rights
and benefits. The matter of "lost compensation" was held in
abeyance pending the filing of a lawsuit if action favorable
to Claimant was not initiated within one month of letter date;
2. This request for reinstatement was timely denied by Carrier,
by letter dated August 13, 1973;
3. The letter of August 26,
1974,
makes no reference at all to the
denial letter;
4. The appeal letter, dated December
5,
1974, to the highest officer
of the Carrier designated to receive appeals, makes claim (for
the first time) for lost wages;
5.
The claim as submitted to the Board makes no reference as to
precisely what is being claimed, i.e. it does not refer to
seniority rights, benefits, wages, or which Rules of the
controlling Agreement between the parties has been violated,
if any.
Form 1 Award No.
7261
Page
3
Docket No.
6947-I
2-B&o-I-t77
It is clear that the claim was altered during "handling" on the
property and lost its meaningful identity entirely when it finally was
submitted to the Board merely in the form of a question. The claim, as
submitted to the Board, is vague and lacks specificity; it does not urge
reinstatement, restoration of seniority (if in fact Claimant has lost his
seniority), restoration of benefits (unspecified) or compensation for lost
wages, nor was there any allegation made in behalf of Claimant that any
of the rules in the controlling Agreement had been violated by the Carrier.
On this basis alone we would be constrained to dismiss the claim.
In addition to the foregoing procedural defects noted in the handling
and presentation of this dispute we draw attention to applicable statutory
obligations placed upon all carriers and their employees.
Section
2,
First, of the Railway Labor Act, contains the following:
"First. It shall be the duty of all carriers, their
officers, agents, and employees to exert every reasonable
effort to make and maintain agreements concerning rates
of pay, rules, and working conditions, and to settle all
disputes, whether arising out of the application of such
agreements or otherwise,..."
Section 2, Second, of the Act, states:
"Second. All disputes between a carrier or carriers and
its or their employees shall be considered, and, if
possible, decided, with all expedition, in conference
between representatives designated and authorized so to
confer, respectively, by the carrier or carriers and by
the employees thereof interested in the dispute."
(emphasis added)
Section 2, Sixth, of the Act, states in pertinent part:
"Sixth. In case of a dispute between a carrier or carriers
and its or their employees, arising out of grievances or out
of the interpretation or application of agreements
concerning rates of pay, rules, or working conditions,
it shall be the duty of the designated representative or
representatives of such carrier or carriers and of such
employees, within ten days after receipt of notice of
desire on the part of either party to confer in respect
to such dispute, to specify a time and place at which
such conference shall be held:
...
That nothing in this
Act shall be construed to supersede the provisions of
any agreement (as to conferences) then in effect between
the parties." emphasis added
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7261
Page 4 Docket No.
6947-I
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Section
3,
First (i), of the Act - relating to the National Railroad
Adjustment Board - states, in pertinent part:
"(i) The disputes between an employee
...
and a carrier
...
growing out of grievances
...
shall be handled in the
usual manner up to an including the chief operating officer
of the carrier designated to handle such disputes;"
Rule
33
- Claims and Grievances, of the current Agreement between the
Carrier and the employees contains the following, in pertinent part:
"Should arty employee, subject to this agreement, believe he has
been unjustly dealt with, or any provisions of this agreement
have been violated, the case shall be handled as follows:"
(emphasis added)
This rule then sets forth the agreed upon steps to be followed from the
date of occurrence on this the claim or grievance is based up to and
including submission (if necessary) to the appropriate Division of the
Adjustment Board. The rule is relatively standard in format and provides
a time limit of sixty
(60)
days for each step in the procedure, including
the taking of an appeal, up to the highest officer designated by the Carrier.
In the event the decision of the highest officer is to be appealed to the
Adjustment Board such action must be instituted within nine
(9)
months from
date of such decision. The rule provides for extension of the time limits
by agreement between the parties.
Section
7,
of Rule
33,
states as follows:
"7.
In applying time limits set forth in this rule, the sixtyday time limit for highest appeal officer to make reply shall
run from the date of conference at which the claim or grievance
is discussed. The nine-month period shall date from the date
of written decision of Carrier's highest officer." (emphasis
added)
Even a casual reading of the foregoing clearly shows that there is a
statutory as well as an Agreement obligation that grievances shall be handled
expeditiously in conference between the parties. Exchanges of correspondence
do not constitute conference as contemplated either by the Railway Labor Act
or by the Agreement.
The record before us fails to show that any conference between Claimant's
attorney and the Carrier representatives was ever held at any stage in the
proceedings, nor was a conference requested. The omission of this mandatory
procedural step is a bar to consideration of this dispute on-its merits.
Form 1 Award No. 7261
Page
5
Docket No. 6947-I
2-B&O-I-'77
Additionally, the record clearly shows that a period of more than one
year lapsed between the declination by the Superintendent Shops, Mr. Eyerly,
and the appeal letter to the highest officer of the Carrier, notwithstanding
the sixty-day time limit set forth in the Agreement.
The number of awards of the Adjustment Board are legion in support of
the conclusive observations set forth herein. For the sake of brevity we
will cite only the following as being illustrative of the point:
1. Regarding the submission of an altered claim:
Second Division Award No.
6657
stated in part:
"A review of the claim as it was handled on the property
and as submitted to this Board reveals that the claim as
originally submitted was changed on the property and
further amended when it was presented to this Board. It
is our opinion that the claim now before us is substantially
at a variance with the claim handled on the property.
Consequently, we are left no alternative other than to
conclude that the-claim is procedurally defective as it
violates Section
3,
First (i) of the Railway Labor Act,
compelling a dismissal without reaching the merits thereof."
2. Regarding the matter of obligatory conferences:
Third Division Award No.
15880
stated in part:
"As a general proposition, it is well established by a
long line of awards by this Board that the failure to
have a conference on the property precludes consideration
of the merits of the claim. The rationale of most of
these awards is that the provisions of Section 2, Second
and Section 2, Sixth of the Railway Labor Act are
mandatory in their requirement that a conference be held,
and absent such conference, the Board has no jurisdiction.
See Awards Nos. 14873, 14847, 13721, 13120 and 13097. "
3.
Regarding the matter of time limits:
Second Division Award No. 7021 stated in part:
"In this connection, we have held repeatedly that the
Agreement must be construed as written and that precise
time limits are mandatory upon the parties and must b e
complied with. Prior Awards on this established principle
are legion and need hardly b e cited."
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Page 6 Docket No. 6947-I
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Based upon the state of the record before us it is clear that the
subject claim was altered on the property and amended when submitted to the
Board; that mandatory conferences were not held on the property; and that
the time limits set forth in the Agreement were not complied with. Any
one of the foregoing is sufficient to justify a dismissal of the claim and
when considered in consort we are left with no alternative but to dismiss
the claim on the grounds of procedural defects, without reaching the merits
thereof.
A W A R D
Claim dismissed.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest: Executive Secretary
National Railroad Adjustment Board
By V
o/
emarie Brasch - Administrative Assistant
Dated at Chicago, Illinois, this 5th day of April, 1977.