Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No.
7828
SECOND DIVISION Docket No. 7339
2-N&W-CM-'79
The Second Division consisted of the regular members and in
addition Referee Dana E. Eischen when award was rendered.
( System Federation No. 16, Railway Employes'
( Department, A. F. of L. - C.I. 0.
Parties to Dispute: ( (Carmen)
(
( Norfolk and Western Railway Company
Dispute: Claim of Employes:
1. That carrier violated the current working agreement when it
allowed supervision to xexail freight car in train yard at Cleveland,
Ohio on May 7, 1975.
2. That carrier violated Article V, National Agreement dated August
21, 195+ and Second 3 (i) of the Railway Labor Act during the
processing of the claim on the property.
3. That accordingly, carrier be ordered to compensate Carmen L.
Thomas and H. Wilk four
(4)
hours each at the straight time rate
of pay fox May 7, 1975.
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 ox employes involved in this
dispute axe 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 -vra.ived right of appearance at hoaxing thereon.
This claim involves the assertion that Carrier violated Rule 125 and
related past practice by allawi rzg a Traims.ste,r and a Yardmaster to perform.
work rexailir~; a 'car at East 55th Street Yard, Cleveland, Ohio. Before we
can loop at that merits question, homevex, we must deal with count ervailing,
procedural allegations by the parties relative to the so-called Tune Lima.ts
on Claims Rule, Article V of the National Agreement dated August 21, 1
~54.
In that connection, the Organization maintains that the claim must be
"allowed as presented" because allegedly it was not answered within 60 days
of filing date and also because allegedly it was answered
b4y
the "wrong"
Carrier official. For its ,pant, Carrier denies that any specific official
rust answer a claim under the Agxeu~eut and also maintains that the
organization has not carried the burden of proof xe;ax~iirgg proper filing
of the claim.
Form 1
Page 2
Award N0, 7828
Docket No.
7339
2-N&W-CM-'79
Specifically, Carrier insists that the claim was improperly filed but
also that the record is rife with credibility conflicts regarding the
original filing of the claim arid since the Board. is unable to resolve
credibility impasses then the organization's contentions regarding original
filing cannot prevail.
Examination of the documentary evidence shows that someone "doctored"
the initial claim letter dated May
22, 1975
so that in its altered state it
indicates submission to the General Foreman rather than to the Car Foreman.
Carrier maintains that the alteration eras done by the Organization and that
the claim was submitted to the General Foreman on May
26, 1975,
The
organization maintains that the claim was submitted to the Car Foreman on
May 22.,
1975
and thereafter altered by the General Foreman to show improper
submission at the latex date. It is established without doubt that the Car
Foreman is the official to whom claims axe to be initially submitted.
In the state of this record it is not possible to determine the critical
points at issue without making credibility choices between the directly
conflicting stories of the General. Foreman and the Local Chairman. Those
individuals alone know fox sure what happened and they relate irreconcilable
versions of the transaction. In the circumstances, we axe unable to determine
facts which are essential to the proper resolution of this claim. See
Awards
22 979
(First);
6579, 68'76, 7051
(second);
19501, 19939, 20229
(Third);
1157 3201, 33+7
(Fourth). With the established precedent and the
accepted standards and burdens of proof under which we operate, the onus
of such a record deficiency falls upon the moving party. We have no
alternative but to dismiss the claim.
It is not without a sense of frustration and reluctance that we so
decide, since we believe that wherever possible disputes should be joined
and decided on their merits rather than upon procedural technicalities.
Particularly is this true where it is equally likely as not that a party
has pxofl- ved by tampering with evidence and taking advantage of our limited
jurisdiction. If that is what happened herein, then such a victory indeed
is pyYWUio because these .parties must continue to live together and deal
with one another in the day-to-day administration of their Agreement.
are institutionalized conflicts
Those who refuse to live
Collective bargaining and grievance handling
made tolerable by mutual respect and honesty,
up to those standards inevitably are repaid in their own coin,
A W A R D
Claim dismissed.
Attest: Executive Secretary
National Railroad Adjustm~t Board
By
,..'~p.,tt.:r°E.
~~enaFle
asc
5~I-nistrailve Ass!s~
Dated at Chicago, Illinois, this 7th day of February,
1979.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division