Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No.
8642
SECOND DIVISION Docket No. 8376
2-C&O-CM-'81
The Second Division consisted of the regular members and in
addition Referee Kay McMurray when award was rendered.
( Brotherhood Railway Carmen of the United States and
Parties to Dispute: ( Canada
(
( Chesapeake and Ohio Railway Company
Dispute: Claim of Employes:
1. Claim that Carman-Tentative, H. E. Fannin's name was improperly placed.
on the January 1,
1978
carmen-tentative seniority roster with a (late of
May 14,
1977
instead of March 10,
1950,
in violation of Rules
'27
and -;1
of the Shop Crafts Agreement and Carmen's Special Rule
177.
2. Accordingly, Carman-tentative, H. E. Fannin's name should be restored
to the Carmen-tentative Seniority Roster at Russell Terminal with the
original date of March 10,
1950.
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.
Claimant, Mr. Fannin, received his original seniority date as a carmantentative on March 10,
1950.
He was furloughed on October 3,
1958.
The Carrier
alleges that he was recalled on December
24, 1965,
for a permanent carman-tentative
position and failed to report. Accordingly, his name was removed from the
seniority roster under Rule
27
which provides that "Those failing to notify of
their intention to return or failing to return within a reasonable time will
forfeit their seniority on the roster on which called."
In May of
1977
a carman vacancy existed at Russell. Mr. Fannin responded
to the recall and was placed on the seniority list as of May
14, 1977.
Claimant challenges that new seniority date. The Organization claims that
he was improperly recalled on December
24, 1965,
and therefore should have his
original seniority date.
The Carrier raises a serious procedural objection, pointing out that the
claim was not filed in accordance with the time limit provisions in the contract.
In so doing, it relies on Rule
35
of the controlling Agreement, which reads in
pertinent part:
Form l Award No. 8642
Page 2 Docket No.
8376
2-C&O-CM-'81
"All claims or grievances must be presented in writing by
or on behalf of the employe 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..."
The record reveals that Claimant returned to service on May 14,
1977
and in
June of
1977
had been made aware of his new seniority status by the Foreman.
Unfortunately, he waited until March
18, 1978,
to inform his organization of
the problem and the grievance was filed on that date, over eight months after
the occurrence.
The contract is an agreement between the parties and this Board is constrained
by law and practice from any attempt to modify its terms.
Clearly the claim was not filed within the tine provided and therefore cannot
be considered by the Board.
A W A R D
Claim dismissed.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest: Executive Secretary
National Railroad Adjustment Board
+By
semarie
Bras
Kdmi
trative Assistant
m
t ic
Zo.
1981.
Dateat Chicago, Illinois, this 4th day of March,