Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No.
7652
SECOND DIVISION Docket No. 7153
2-T&P-CM-'78
The Second Division consisted of the regular members and in
addition Referee Robert G. Williams when award was rendered.
( System Federation PTo. 121, Railway Employes'
( Department, A. F. of L. - C. I. 0.
Parties to Dispute: ( (Carmen)
(
( Texas and Pacific Railway Company
Dispute: Claim of Employes:
1. That the Carrier violated the current agreement when on December
12,
!967
and June
3, 1970
it failed to notify or call Caiman
Helper S. M. Haney for service in accordance with his seniority.
2. That the Carrier violated the procedural provisions of Rule 23
(a) of the controlling agreement dated August 1,
1969
when it
failed to give written decision on claim filed in behalf of
Carman Helper S. b7. Haney by General Chairman A. D. Hickman in
his letter of February 24,
1975.
3.
That accordingly, the Carrier b e ordered to compensate Carman
Helper S. M. Haney, sixty (60) eight hour days at the Carmen's
rate of pay beginning September 12,
197!+
through November 10,
1974.
That accordingly, the Carrier be ordered to place Carman Helper
S. M. Haney name on the Big Spring, Texas seniority roster ahead
of Carman C . I. Wright, Jr. and G. A. Hernandez, after completicn
of
1,040
days served as upgraded CamaL Helper.
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 tie Adjustment Board has jurisdiction over the dispute
involved herein.
Parties to said dispute waived right of appearance at hearing thereon.
'Form 1
Page 2
Award No. 7652
Docket No.
7153
2-T&P-CM-'78
The threshold issue in this case involves the procedural question of
whether the Carrier properly failed to answer the claim submitted on
February 24, 1975. Rule
23
(a) of the Agreement provides that the Carrier
must answer a claim within sixty
(60)
days or the claim shall be allowed
as presented. In this case the claim was filed on February 24, 1975 and was
not denied until May 20,
1975,
which was beyond the sixty (60) day time
limit rule. The Carrier contended in its answer that the claim previously
was barred by the thirty (30) day time limit for protesting seniority lists
under Rule 21(c) and therefore required no answer. The language in Rule
23(a) is clear and unambiguous. It is mandatory language. The Carrier
cannot prejudge a claim as frivolous and use that position as a basis for
ignoring the sixty (60) day time limit in Rule 23(a). See Second Division
Awards
3637,
4594, and 6370. This Board is required to sustain this claim
without considering its merits.
A W A R D
Claim sustained.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest: Executive Secretary
National Railroad Adjustment Board
By
emarie Brasch - Admin strative Assistant
Dated at Chicago, Illinois, this 15th day of August, 1978.