Form 1 NATIONAL RAIIROAD ADJUSTMENT BOARD Award No.
8730
SECOND DIVISION Docket No.
87 9
2-C&O-CM-'81
The Second Division consisted of the regular members and in
addition Referee Gilbert H. Vernon when award was rendered.
Brotherhood Railway Carmen of the United States
Parties to Dispute: and Canada
(
( Chesapeake & Ohio Railway Company
Dispute: Claim of Employes:
1. Claim: That Carman, James L. Baines' service rights and rules of then
controlling agreement were violated on March
16, 1978
account J. W.
Wright, Carpenter (differential rated employe) was utilized in wrecking
service in violation of Rule 11. Accordingly, Baines is entitled to
be additionally compensated three
(3)
hours at the Carmen's applicable
time and one-half
(1k)
rate in lieu of said violation.
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.
Rule 11(d) of the pertinent contract states:
"(d) Employes performing special work for which a differential
is paid will not participate in road work, except the kind of
work for which they are paid a differential rate."
The contract also contains the following understanding of Rule 11:
"(1) Employes who are paid a differential for performing
work requiring special skill or training, will when
available, be given the overtime at home station, in their
department, and road work on their territory, in connection
with their special kind of work; but will not be given other
overtime or road work, except when other competent men of
their craft are not available."
It is undisputed that on March
16, 1978,
during the course of the first :shift
the Carrier sent Mr. J. W. Wright who was working as a differentially rated
general carpenter along with four other Carmen, to Williamsburg, Virginia.
Williamsburg is approximately 26 miles from Newport News, the home point for
Form 1 Award No.
8730
Page 2 Docket No.
8749
2-C&O-CM-'81
Mr. Wright and Mr. Baines, the Claimant. The purpose of the trip was to rerail
one car. Mr. Wright's shift was scheduled to end at
3:30
p.m., however, the
rerailing was not completed at that time and he did not return to Newport News
until
6:30
P.m.
Mr. Baines and the Organization contend that Rule 11 prohibits the Carrier
from sending a differential employee out on the road at all and particularly
when it involves overtime as was involved in this situation. The claim represents
the overtime worked by Mr. Wright.
Regarding the merits, the Carrier argues that when it sent Mr. Wright to
Williamsburg he was engaged in wrecking service. In this regard, it is their
contention that it has been the practice at Newport News for many years not to
make any distinction between differentiated employees and regular Carmen when
making assignments for wrecking service which was not expected to involve overtime.
The Carrier further argues that the fact Mr. Wright's assignment on March
16
involved overtime was beyond the control of the Carrier. When Mr. Wright was
assigned to the wrecking service it was fully anticipated, asserts the Carrier,
that he would return by
3:30
p.m. However, due to a delay in the arrival of the
locomotive crew at the derailment, overtime was worked unexpectedly.
In deciding the merits, the Board would see its task as making a determination
if (1) in the writing of the language of Rule 11 the parties wished-;~ro-equate
straight time wrecking service with the term "road work". The Organization implies
that the terms are equivalent when they contend Mr. Wright had no right to be
engaged in wrecking service on the road in the first place. On the other hand,
the Carrier argues the ambiguity of Rule 11 is resolved by the aforementioned past
practice, which they assert is undenied, and (2) it would be our task, if Rule
11 doesn't apply to straight time wrecking service but that it applies to all
overtime, to decide if the Carrier is liable for "unanticipated" overtime. If
this were the case, we would expect a showing on the organization's part that the
Carrier could. have or should have reasonably known overtime would be involved
when making a straight time wrecking service assignment.
However, before we can address ourselves to the above questions en route to
a finding on the merits, we must address ourselves to the Carrier's argument
that the Board is without jurisdiction to consider the claim inasmuch as it was
not handled in accordance with Rule
35.
The pertinent portion of Rule
35
states:
"2. If a disallowed claim or grievance is to be appealed,
such appeal must be in writing and must be taken within
60 days from receipt of notice of disallowance and the
representative of the Carrier shall be notified in writing,
within that time of the rejection of his decision. Failing
to comply with this provision, the matter shall be considered
closed..."
The Carrier argues that Mr. A. M. Childers, Manager of Car Department, never
received a rejection of his first step declination as is clearly required by
Rule
35. law
Form 1 Award No.
8730
Page
3
Docket No.
8749
2-C&O-CM-'81
In reviewing the record in regard to this contention, the Board observes that
the lack of a rejection to Mr. Childer's declination was brought to the attention
of the Organization in the Carrier's second and final step declination on September
22, 1978.
It was stated therein:
"Initially, Mr. Childers declined the instant claim by a
letter dated June
'9, 1978,
and we are advised that he
Y*as
not been notified of the rejection of his decision
as required by Rule
35
of the Agreement. Therefore, the
claim is not properly before this office on appeal and
cannot be entertained."
The claim was discussed in conference December
6, 1978.
Then on January 11,
1979,
the Organization furnished to the Carrier's highest officer designated to
handle claims a copy of a letter dated June
25, 1978,
addressed to Mr. Childers
which they contended constituted a proper rejection. On March
22, 1979,
the Carrier
further advised the Organization that as of February
2, 1979,
"that Mr. Baines'
letter of June
25, 1978
was never received by Mr. Childers."
In reviewing the arguments relative to the procedural soundness of the
grievance we find that the Organization has failed to convince us that they
complied with the requirements of Rule
35.
Rule
35
places a positive obligation
ow the organization to notify the Carrier of the rejection of a denial. It also
makes clear that "failing to comply with this provision, the matter shall be
considered closed..." Rule
35
places obligations on both the Organization and the
Carrier in the handling of claims. In this case, the Organization failed to meet
theirs. The record is clear that Mr. Childers has never received a rejection of
his declination. In dismissing the claim on this procedural basis, we are only
applying the agreement as written. See Second Division Award
1847
and Third
Division Awards
13529, 21192
and
8564,
a case identical to the instant one in
respect to procedural issues, wherein the follffng
comments -sere m*de
"We recognize full well that a dismissal that is not
based on the merits of the case is not entirely
satisfactory; it possesses the view vfi-lg alaimmts
with the feeling that they have not had 'their day in
court.' We would very much prefer not to base this
decision on Article V of the Agreement. Nevertheless,
each of the parties is responsible for the inclusion of
this language in the Agreement and what we may think of
its wisdom, relative importance of soundness is not at
all material. It is our function to interpret the
Agreement as it now stands and not to rewrite it in
accordance with our own theories of labor-management
relations. We are not disposed to strain interpretations
in order to escape the technicalities of a plain meaning.
Nor is it proper or desirable to resort to fictions and
distortions to spell out a waiver, where none exists, in
an effort to avoid a decision based on procedural defects
rather than on the merits.
Form 1 Award No.
8730
Page
4
Docket No. 8749
' 2-C&O-CM-181
"Here the Agreement is clear and unambiguous with respect
to the immediate point in issue and it is entirely certain
that the Petitioner has not complied with a requirement
expressly made essential by the Agreement between the
parties."
A WAR D
Claim didbissed.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest: Executive Secretary
National Railroad Adjustment Board
r
~.r
semarie Brasch - A strative Assistant
Dated ~t Chicago, Illinois, this 3rd day of June, 1981.
Iftw