Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 8268
SECOND DIVISION Docket No. 7958-T
2-B&OCT-SM-'80
The Second Division consisted of the regular members and in
addition Referee Abraham Weiss when award was rendered.
( Sheet Metal Workers' International
( Association
Parties to Dispute:
(
( Baltimore and Ohio Chicago Terminal Railroad Company
Dispute: Claim of Employer:
1. Carrier violated Article V of the August 21, 1954, Agreement, and that,
accordingly the claim should be allowed as presented.
2. That under the current Agreement, other than employees of the Sheet Metal
Workers' Craft "boilermakers and carmen were improperly assigned to
perform Sheet Metal Workers' work of constructing portable guard rails
to be placed around the traction motor drop table and pit at the
Baltimore & Ohio Chicago Terminal, Chicago, Illinois on April 12,
13,
14., 15
and 18, 1977.
3.
That accordingly, the Carrier be ordered to additionally compensate -the
following employees, Sheet Metal Worker-Plumbers, G. Stauder, and F.
Fazio in the amount of eleven (11) hours each at the straight time rate
for this violation of the Agreement.
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.
This claim charges that Carrier improperly assigned Boilermakers and Carmen
to construct portable guard rails to be placed around the traction motor drop
table and pit at Barr Yard Shop. Petitioner alleges that such work falls within
the Sheet Metal Workers' Classification of Work Rule
65.
The Boilermakers and Carmen organizations as interested third parties, were
duly notified of the pendency of this dispute. The Boilermakers' Organization
submitted a statement for the record; the Carmen declined to intervene in the case.
We will first dispose of Petitioner's contention that Carrier violated the
terms of Article V, paragraph (a) of the August 21,
195!+
Agreement reading, in
pertinent part:
Form 1 Award No. $268
Page 2 Docket No. 7958-T
2-B&OCT-SM-'80
" 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 far 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 clan here at issue was submitted by the Sheet Metal Worker Local Chairman
Mazza to Carrier's Manager of Engineering King by letter dated June 1, 1977,
postmarked June 3, 1977, and delivered (date stamped) on June 4, 1977, a Saturday.
The letter shows.-an Engineering Department date stamp of June 6.
On August 3, 1977, Local Chairman Mazza wrote Mr. King, advising that the
latter was in violation of Article V Section (a) of the August 21, 1954 Agreement
and that the claim was being referred to the Organization's General Chairman.
Carrier denies that Article V was violated, arguing that Mr. King, the officer
authorized to receive the claim, did not receive the claim until June
6,
a Monday,
inasmuch as his office was not open for business on Saturday and Sunday, June
and
5,
respectively. Carrier asserts that "The certified postal receipt was not
signed by either Mr. King or anyone in his office, but by some other person, mDst
likely a clerk in the mailroom". Consequently, Carrier contends, the claim was
not actually received or "presented" in Mr. King's office until June 6, the first
day on which his office was open for business following the .receipt of the claim
in the mailroom. Hence, Carrier maintains, Mr. King's August 5, 1977 reply to
the claim fully complied with the 60-day time limit provision of the Agreement.
In this regard, Carrier calls attention to the fact that Local Chairman Mazzas
letter of June 1 is date stamped as received on June 6 in the Engineering
Department.
Carrier cites Second Division Award No. 4609 as illustrative of a case involving
similar circumstances to those herein involved. In that case the Organization
mailed an appeal dated September 20, 1962, a Thursday. The letter apparently
arrived in Carrier's mail on Saturday September 22 or Sunday September 23. Since
these were days on which Carrier conducted no business in that office, Carrier had
no knowledge of the appeal until Monday, September 24. Carrier denied the appeal
by letter dated November 21, 1962 and the Petitioner in that case contended that
Carrier had not complied with the 60-day time limit set forth in Article V of
the August 21, 1954 Agreement. The Board, in its Award No. 4609, sustained
Carrier's position that the claim was answered within 60 days of the date on which
Carrier first had knowledge or was notified of the appealed claim. The Board
stated:
"Award No. 3690 of this Division, inter alia, says, ',..
Webster's New Collegiate Dictionary defines the verb
'notify' as meaning 'to give notice to; to inform'.
One is not informed -- notice is not given to him -until he receives it.'
Form 1 _ Award No.
8268
Page
3
Docket No.
7958-T
2-B&OCT-SM-'80
"Applying the reasoning and definition found in Award No.
3690,
the Employes' procedural argument is erroneous in
our opinion, because the claim before us was denied by
the highest officer handling claims for the Carrier
within
60
days of his having been 'notified' that an
appeal was being made to him."
Petitioner relies on Third Division Award No.
14695
(Ives) which stated;
"The National Dispute Committee Division No. 16, dated March
17,
1965,
incorporated into Award 13780, held that the claim should
b e considered 'failed' on the date received by the Carrier.
Consequently, the date of receipt determines the 60 day time
limit, which commences to run from that date. Subsequently,
Awards have held that the Carrier must stop the running of the
time limit by mailing or posting the notice required within the
60
days of the date that the claim was received. (Award
11575
and Second Division
3656)."
In our view, Third Division Award
14695,
when considered in conjunction with
Second Division Award
i1-609
does not support Petitioner's claim that Mr. King's
denial letter was untimely. Predicated on Award
t1-609,
Carrier's designated
official was "notified" oz" the claim on June 6. His denial letter of August 5
fell just within the 60-day limit,
With respect to the merit of the claim, both Carrier and the Boilermakers'
Organization contend that this Board has no jurisdiction in this matter. Their
reason is that Petitioner has not complied with the provisions of a Memorandum
of Agreement covering jurisdiction, requiring that jurisdictional disputes be
first handled between the representatives of the respective Organizations prior to
any handling of the dispute with the Carrier. Accordingly, they assert, this
appeal to the Board is premature and this claim should, therefore, be dismissed
because of such non-compliance with the jurisdictional dispute settlement procedure
outlined in the Memorandum of Agreement.
The situation before this Board is that two organizations are claiming the
exclusive right to perform the work at issue. Petitioner has produced no evidence
that Carrier has unilaterally changed an established assignment of work. Absent
such showing, this matter becomes a jurisdictional dispute, governed by the
Memorandum of Agreement. The record is clear that Petitioner has not complied
with the requirements of the Memorandum of Agreement for settlement of the dis]?ute
by the involved crafts on the property. Under the circumstances, we have no
alternative but to dismiss the claim.
A W A R D
Claim dismissed.
Form 1
Page 4
Attest: Executive Secretary
National Railroad Adjustment Board
o emarie Brasch - Administrative Assistant
Dated t Chicago, Illinois, this 19th day of March, 1980,
Award No. 8268
Docket No. 7958-T
2-B&OCT-SM-'80
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division