C:\AWARDS\OUT\2-07371.htm

Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 7371
SECOND DIVISION Docket No. 72h4
2-A&S-CM-'77

The Second Division consisted of the regular members and in addition Referee Robert A. Franden

when award

was rendered.

( System Federation No. 2, Railway Employes'

( Department, A. F. of L. - C. I. 0.

Parties to Dispute: ( (Carmen)

( Alton and Southern Railway Company

Dispute: Claim of Employes:

1. That Cayman B. Loomis was improperly suspended on July

3, 1975,

and subsequently improperly discharged.

2. That the Carrier violated the procedural provisions of Article

V of the National Agreement dated August 21, 195, when letter

dated August 15, 1975 directed Mr. Ersnett D. Cox, Local Chairman,

from Mr. Y7. B. Needham, Superintendent, The Alton and Southern

Railway Company, failed to be complete or concise by not setting

forth in writing the reason for declining claim.

That accordingly, the Carrier be ordered to restore Cayman B.

Loomis to service with seniority and other rights unimpaired and

paid for all straight time lost, including payment for Health

and Welfare benefits and other benefits that are a condition of

employment, plus six per cent

(6%)

interest on wages.

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, 193+.

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

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

This is a discipline case based upon an alleged improper dismissal of claimant for consuming intoxicating beverages while on duty.

Prior to any consideration of the merits of this case we must first determine the procedural issue raised by the organization, to wit: that the denial of the claim by the carrier in its August 15, 1975 reply to the organization's claim dated August 11, 1975, did not meet the requirements
Form 1 Award No. 7371 Page 2 Docket No. 724+ 2-A&B-CM-'77 of Article V of the National Agreement dated August 21, 195+ in that the reasons for denying the claim were not set out therein. Article V, paragraph (a) of the August 21, 195+ National Agreeement reads as follows:

"(a) All claims or grievances must be presented in writing by or on behalf of the employee involved, to the officer of the Carrier authorized to receive same, within

60

days from the date of the occurrence on which the claim or grievance is based. 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 or grievance (the employee 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."

The letter from Carrier dated August 15, 1977, declining the claim, reads as follows:

"Reference to your letter August 11,

1975

in connection with your remarks and views reference to investigation conducted July 2,

1975

with Mr. B. Loomis.

I refer you lto the third paragraph of your letter requesting Cayman Loomis be reinstated to service with seniority rights, vacation rights, sick leave benefits and all other benefits that are a condition of employment unimpaired and compensation for all lost time plus six

(e)

percent annual interest is hereby declined."

We have reviewed the many awards furnished this Board dealing with the sufficiency of a denial of a claim in terms of compliance with paragraph (a) of Article V. It has been held that "There is no basis fox the claim and it is accordingly denied" (Award 16576 Third Division), "I can find no basis for your claim" (Award 16780 Third Division), and, "The above claim is declined account not supported by the rules of your current working agreement." (Award 3+26 Fourth Division) all meet the requirements of paragraph (a) of Article V. Award 7015 cited by the Carrier holds that a denial which states, "Confirming conference held in Assistant Superintendent W. J. Kugler's office on January 15, between you and Mr. Kugler it is still my position rot to reinstate former Caiman J. A. Mance and R. J. McDowell, and your request is respectf'zlly declined, and any further handling will have to be taken up with our personnel department at Tyler, Texas." is sufficient. Foam 1 Award No. 7371 Page 3 Docket No. 7c^^44 2-A&S-CM-'77 The letter from Carrier officer Needham dated August 15, 1975 quoted above does nothing more than state that the claim is declined. No reference is made to earlier denial letters or conferences, to the Carrier's position that no rule in the agreement has been violated, to a defense based upon the claim lacking basis ox anything indicating whether the claim is being denied on the merits ox' on some procedural issue. The provisions of Article V paragraph (a) have been rather liberally construed but we believe that to hold that the letter declining the claim in the instant case meets the requirements of that paragraph would in effect remove from the agreement the words "notify whoever filed the claim or grievance (the employee or his representative) in writing of the reasons for such disallowance." We will allow the claim as presented, with the caveat that under the agreement this a-vrard does not become a precedent or waiver of the contentions of the Carrier as to other similar claims or grievances.

A W A R D

Claim sustained. NATIONAL RAILROAD ADJUSTMENT BOARD By Order of Second Division Attest: Executive Secretary National Railroad Adjustment Board By Ro emarie Brasch - Administrative Assistant Dated at Chicago, Illinois, this 14th day of October, 1977.