Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No.
8891
SECOND DIVISION Docket No. 9016
2-CMStP&P-CM-'B2
The Second Division consisted of the regular members and in
addition Referee Clarence H, Herrington when award was rendered.
( Brotherhood Railway Carmen of tho United States
Parties to Dispute: ( and Canada
( Chicago, Milwaukee, St. Paul and Pacific Railroad Company
Dispute: Claim of Employee:
1. That the Chicago, Milwaukee, St. Paul and Pacific Railroad Company did
unjustly fail to recall to service in line with his seniority Cannan
Painter ,Tames Cegielaki and did hire ir, his place a new employee.
2, That the Chicago, Milwaukee, St. Paul and Pacific Railroad Company be
ordered to compensate Cayman Painter James Cegielski at the straight
time rate of pay for 110 days plus any additional days from date of
Local Chairman Laack's letter of claim dated November 10, 1978 until he
is restored to service.
3. That the Chicago, Milwaukee, St. Paul and Pacific Railroad Company be
ordered to pay Cayman Painter James Cegielski interest at the rate per
annum for any monies he may receive as result of this claim.
Findings:
The Second Division of the Adjustment Board, upon the whole record and all
the evidence, finds that:
1'he carrier or carriers and the employe or employee 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.
The record in this dispute reveals that the Claimant holds seniority as a
painter in the Passenger Car Shop at the Carrier's facilities in Milwaukee, Wisconsin
with a date of May 25, 1972. The Claimant was laid off due to a reduction of force
in March, 1975. On June 12, 1978, the Carrier was in need of a painter in the
Locomotive Department at its facilities in Milwaukee, and employed a new man. in lieu
of recalling the Claimant under the provisions of Rule 27(d) reading:
"In the restoration of forces, employee will be restored to
service in accordance with their seniority and shall be
returned to their former position if possible. Employee
failing to return to service within fifteen (15) days after
date of notice to their last known address, unless an
extension has been granted by the supervisor in charge and
the local committee, will forfeit all seniority rights. The
local committee will be furnished with a list of employee to
be restored to service."
Fonn 1
Page 2
Award No.
8$9I
Docket No. 9045
2-CMStP&]?-CM-'82
On September 15, 1978, the Organization became aware that a new painter had
been employed. On October 14, 1978, the General Chairman dibeustsed the matter with
supervision, who agreed to call the Claimant and did so on October 16, 1978. The
Organization filed the dispute now before this Board on November 10, 1978.
At the outset the Carrier contends that the claim is barred
bar
the time limit
as set out in Article V, 1(a) of the August 21, 1954 Agreement, and Section 3,
First (i), of the Railway Labor Act and/or Circular No. 1 of the Board. The
Organization's reply is that the dispute before the Board is a continuing claim.
Numerous awards of this Board have consistently held that the distinction between
a continuing claim and a non-continuing claim is whether the alleged violation in
dispute is repeated on more than one occasion or is a separate and definitive action
which occurred on a certain date. This Board has also settled, beyond question,
that while a continuing liability may result that this does not create a continuing
claim. The record in this claim establishes that the occurrence on which the claim
is based is the employment of a new painter on June 12, 1978: The record also establishes
that no claim was presented to the carrier until November 10, 1978, well beyond the
60 day time limit.
This Board prefers to dispose of disputes such as that herein on their merits
rather than on procedural grounds. Since the claim, ho*evet, was not presented
within the time limit the Board has no authority to consider the merits and the
claim must be dismissed.
A W A R D
Claim dismissed.
Attest: Executive Secretary
National Railroad Adjustment Board
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
By
_ d
...,.,_
o marie Brasch - Administrative Assistant
Dated t Chicago, Illinois, this 27th day of January,
1982,