Form 1 NATIONAL RAILROl:D ADJUSTP.TNT BOARD Award No.
8116
SECOTD DIVISION Docket No.
7993
2-Sgr-CM-
t
79
The Second Division consisted of the regular members and in
addition Referee Herbert L. Marx, Jr. when award was rendered.
( System Federation No. 1.14, Railway 1~nployes'
' ( Department, A. F. of L. - C. I. 0.
Parties to Dispute: ( (Carmen)
(
( Southern Pacific Transportation Company
Dispute: Claim of EmnloZes:
1. That the Southern Pacific Transportation Company violated the
terms of the controlling agreement when Superintendent W. M. Jones
did not make reply to Local Chairman G. Lepas's claim dated
May
23, 1977,
until October 21,
1977,
which is 151 days after
date said claim was filed.
2.
That under the terms of the controLLin- agreement, Carman G.
Lepas eras unjustly deprived of his service rights and co upensation
when he was in nroperl;,r withheld from service from March
29
to
April 4,
1977,
and
April 12 to July 26, 1977,
after thirty (30)
years of service with the Carrier.
3.
That accordingly, the Southern Pacific Transportation Company be
ordered to connensate Catma,n Ceorge I~epas for all days he would
have worked during the period ui thheld from service, plus all
other benefits he would have earned.
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 waived right of appearance at hearing thereon.
There is no dispute between the Carrier and the Organization concerning
the facts of this dispute. They are recounted here, however, as necessary
background to the clan on procedural grounds,
which is
its sole basis.
Claimant was injured on duty on
:February
16, 1977,
causing him to be
off duty under medical care until his return on Ia.rch
17, 1977.
The Carrier
ordered him to renort for medical examination on `.'~rch 29, 15)7'7, which he
undertook and a ;a.i n returned to work on April 4. Claimant was placed on
Form 1 Award No.
817-6
Page 2 Docket No.
7993
2-SET-CM-'79
restriction on April 1_1, limiting the type and extent of physical exertion
he was permitted to perform, which caused him to be denied employment from
this point. Thereafter, medical restrictions on the Claimant were loosened,
permitting him to return to duty on July
26, 1977.
On May 23, 1977,
Claimant filed a claim in good order with the Carrier
stating in part:
"Under Rule
38,
as an employee who considers himself
unjustly treated I am applying for reinstatement with
no
restrictions to continue r.7 employment in the
capacity of Carman with all -vages and benefits paid
back and restored due to this uncalled for action."
On June
17,
Carrier's Superintendent responded in full as follows:
"Referring to your '' etter of
',.'ay
23, 1977,
the physical
restrictions were reconnended by the Chief Medical
officer follo:,ring his review of the results of pizysical
examination at St. Joseeh's J.'ospital, and the three
physicians' statements enclosed with your letter of
MI
ay
23, 1977,
have been referred to Dr. i.'_eyers.
Enclosed is the Credit Life inusrance claim form
forwarded to this office."
On September 24, Claimant (who is also Local Chairman) again wrote to
the Superintendent, stating that
09
days had passed since his letter of
May
23, 1977,
quoting the requirements of Rule
38(b),
elaiminb violation of
said rule, and requesting that the claim be allowed.
On October 21, the Superintendent again wrote to the Local Chairman/
Claimant, stating as follows:
"Further in connection with your letter dated September 24,
1977,
claim for time loss by Cayman George Lepas under the
provisions of Rule
38(B)
in the current agreement faith the
Brotherhood of Railway Carmen:
Records indicate that Cayman George Lepas -was released for
duty last April with :medical restrictions which prevented
his working; therefore, he is not entitled to any of the
earnings included in the claim, and cla-dl.r. as presented in
your letter of September
24, 1977,
is declined in its
entirety."
Form 1
Page 3
Award No. 8116
Docket No.
7993
2-SPT-CM-'
79
The cited Rule 38 (b) reads as follows
"Rule 38(b). A claim or grievance may be presented in
writing by the duly authorized committee to the master
mechanic (to shop superintendent in General Shops),
provided said written clam. or grievance is presented
within sixty (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 sixty (60) days from the date same is filed, notify
whoever filed the claim or grievance (the employe 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.
Any claim or grievance not presented within sixty (60)
days of the occurrence on which based will be deemed to have
been abandoned. "
The Carrier's October 21,
1977
letter answered in timely fashion the
Septeyaber 24,
1977
claim that the :.:ay
23, 1977
claim was not answered erithin
the time limits of 11~7ale
38(b).
In no ..:a-y, however, can the June
17, 1977
letter from the Super intendent be considered a proper denial under Ruse
38
(b) of the T,`_ay
23
claim. It fails to be a denial at all by direct
statement nor does it give reason for denial, even if denial were to be
inferred.
As to the question of necessity of stated reason for denial, Awards
No.
7371
(Franden) and
1TO.
7500 ('vaZlacel are relevant. in this instance,
the insufficiency of the June
17
goes even further, i n that it does not
deny anything, much less give a reason. Finally, the Carrier did not argue
on the property that the June
17
letter was to be considered a denial.
On these procedural grounds, the claim :mzst be sustained, making
the state of the Claimant's physical condition irrelevant for this purpose.
A W A R D
Claim allowed as presented.
tIATIONAh RAILROAD ADJUSM'W IT BOARD
By Order of Second Division
Attest: Executive Secretary
National Railroad Adjustment Board
BY _
'~S'=*~acie DraNch - Acb.iin:LStraz~.ve :assistant
Dated at Chicago, Illinois, this 27th day of Septea·iher,
1979·