Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No.
8924
SECOND DIVISION Docket No.
8774
2-C&NW-CM-'82
The Second Division consisted of the regular member: and in
addition Referee Paul C. Carter when award was rendered.
( Brotherhood Railway Carmen of the United States
Parties to Dispute: ( and Canada
(
( Chicago and North Western Transportation Company
Dispute: claim of ETployes:
1. 'that the Chicago and North Western Transportation Company violated the
terms of the controlling agreement when the Division Manager did not:
make reply to Local Chairman Balk's claim dared June
7, 1979,
within
the prescribed time limits.
2. Carman Welder Sam Jones, Belvidere, Illinois, was unjustly dismissed
from service on November 22,
1978.
3. That the Chicago and North Western v_ansportation Company be ordered
to reinstate Carman Welder Sam Jones, and make him whole for all time
lost, plus all benefits that are a condition of employment unimpaired,
in accordance with Rule 35(h),
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, 193+.
This Division of the Adjustment Board has jurisdiction aver. the dispute
involved herein.
Parties to said dispute waived right of appearance at hearing thereon.
The primary issue in this dispute is the Organization's contention that the
Carrier violated Article V(a) of the August 21,
1954,
National Agreement, which
states:
"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 occurrence
on which the claim or grievance is based. Should any such claim or
grance be disallowed, the Carrier shall within
60
days from the
date same is filed notify whoever filed the claim (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 contention of the Carrier as to other similar claims or
grievances."
~a~-m 1 Award No.
8924
F.ige 2 Docket No.
8771+
2
-caw-CM-' 82
The record shows that on Jute
7, 1979,
the Local Chairman of the
Organization
sailed a claim with the Assistant Vice President and Division Manager, contending
Meat the Carrier violated the Agreement in its dismissal of Carman Sam Jones,
~wD.u, the record shows, was dismissed from Carrier's service on November
2'?, 1975,
Local Chairman did not receive a reply to his letter of June
7, 1979,
within
~ixty days and contended that because of not being notified within sixty days,
the claim must be allowed as presented. The General Chairman wrote to Carrier's;
Director of Labor Relations on August
28, 1979,
in which he again alleged:
"It is beyond dispute that A.V.P. and Division Manager R. L.
Johnson failed to reply to Mr. Balk's letter of appeal dated
June
7, 1979,
within the sixty
(60)
day time limit prescribed
in Article V(a) of the August
21, 195+
agreement, which reads
as follows:
(Article V(a) quoted above)
Therefore the Claimant in this case is entitled to compensation
for all time lost, and reinstatement to the Carrier's services."
Article V(a) of the August
21, 195+,
National Agreement has been the subject
f numerous awards of Divisions having jurisdiction over such disputes. Under
:":e provisions of the rule, we consider it entirely proper for the Board to
-arefully examine the rules relied upon by the Petitioner and the facts upon
aich the claim is based. It is clear that the claim in our present dispute
_.ns not "presented in writing by or on behalf of the employe involved to the
~vFficer of the Carrier authorized to receive same within
60
days from the date of
:;urrence on which the claim or grievance is based", as required by the first
:<.intenc,e of Article V(a). Third Division Award
16164
involved a dispute where
riie claim was not filed within sixty days of the occurrence on which the claim
es based, and the claim was never responded to by the Carrier in the handling
.the dispute on the property. In Third Division Award
1616+,
which Award
'.-rzissed the claim, the following is quoted from Third Division Award No.
:32:
"The claim in this case was first presented on March
5, 1955,
which was in excess of
60
days after January 1,
1955.
There
is no dispute in regard to the late filing of the claim. The
Claimant contends that the Carrier failed to raise the question
that the claim was not filed within the
60
days on the property
and by so doing waived this defense...
This is a case under an Agreement that requires the filing of the
claim within a specific time. There was no claim here because it
was not filed within the time required, and there being no claim,
it was not necessary to deny same within the
60
day period."
Third Division Award No.
1616+
quotes from Award
15631:
"... We further state that since no valid claim existed ab initio,
the fact that the Carrier failed to give a reason for declining
Form 1
Page
3
Award No.
892+
Docket No.
877+
2-C&NW-CM-'82
the claim is of no consequence. Since the claim was invalid in
the beginning, we have mo right to consider Carrier's later
procedural error nor do we have a right to consider the merits
of the case. We will dismiss the claim."
In Third Division Award
1616+
reference is also made to Third Division Award
968+,
where it was concluded:
'...
Since the claim was not properly filed In the first instance
we do not reach the question of whether the second sentence of the
above quoted provision (Article V(e) of the August 21,
1954,
National
Agreement) was complied with, nor do we reach the merits of the
dispute."
We are in agreement with Third Division Award No.
1616+
and the other awards
cited therein.
It is also well settled that the burden is
on
the Petitioner to present
facts sufficiently specific to constitute a valit.i claim.
The claim in our present docket must be dismissed.
A W A R
n
Claim dismissed.
Attest: Executive Secretary
National Railroad Adjustment Board
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
/. .. ice
By
os--
emarie Brasch - Administrative Assistant
Dated at Chicago, Illinois, this
24th
day of February,
1982.