Form 1 NATIONAL RAILROAD ADJUST14ENT BOARD Award No. ;'~
SECOND DIVISION Docket No.
9116-I
2-CR-I-'82
The Second Division consisted of the regular members and in
addition Referee John B. LaRocco when award was rendered.
( Thomas O'Hare
Parties to Dispute:
( Consolidated Rail Corporation
Dispute: Claim of Employes:
1. The complainant, Thomas O'Hare of Sibley Avenue, West Springfield,
Hampden County, Massachusetts is a carman employee of the respondant,
Consolidated Rail Corporation. (hereinafter referred to as Conrail).
2. The Consolidated Rail Corporation formed in
1974
is the legal successor
in interest to the Penn Central Railroad Company. The Penn Central
Railroad Company formed in
1969
was the legal successor to the New York
Central Railroad.
3.
Mr. O'Hare for purposes of this complaint originally began employment
in the year
1953
as a carman for the New York Central Railroad. Mr.
O'Hare was continuously so employed until the year
1963;
at which latter
time, Mr. O'Hare was furloughed.
Mr. O'Hare asserts that he received notice by telephone from Penn
Central Railroad in the year
1973
to return to work as a carman. Mr.
O'Hare accepted and returned to work as provided by said notice.
5.
Between
1963
to
1973,
while furloughed from the railroad, Mr. O'Hare
was continuously employed by Savage Arms in Westfield, Massachusetts.
Mr. O'Hare left his employment at Savage Arms when he was recalled by
the railroad.
6.
Mr. O'Hare has been continuously employed as a carman from his recall
in
1973
to the present.
7.
From
1953
to
1963,
Mr. OHare was a member of the Carmen of America
Union. Sometime during the period when Mr. OHare was furloughed,
Mr. O'Hare's local union changed its union representation to the
Transport workers union of America (AFL-CIO). From
1973
to the present,
Mr. O'Hare is a member of the said Transport Workers Union of America
(T.W.U.) Local # 2051
..
8.
After returning to work for the railroad in
1973,
Mr. O'Hare learned
that in the year
1968,
two coach cleaners with less seniority than
Mr. O'Hare were recalled and set-up as carmen and a third man was
hired as a carman having no previous seniority. Mr. O'Hare also asserts
he learned in
1973,
that in the year
1963,
subsequent to his own
furlough, that another new employee was hired to work as a carman by
Mr. O'Hare's former railroad employer, New York Central.
Form 1 Award No.
Page 2 Docket No.
9116-I
2 -CR-I-' 82
9.
Subsequent to Mr. O'Hare's knowledge of the facts as set forth in
paragraph no.
8,
Mr. O'Hare complained to his union representatives
regarding his position on the applicable carmen seniority roster.
Although there is an extensive history of meetings and correspondence
among Mr. O'Hare, officials of the T.W.U. and his employer Conrail;
nevertheless, the end result was that Conrail denied responsibility
and refused to make an adjustment in Mr. O'Hare's seniority position.
In addition, by various letters in
1979
and
1980
from the T.W.U. to
Mr. O'Hare or to his counsel, the T.W.U. has finally refused to represent
Mr. 0'Hare in his said seniority dispute.
10. As its defense, Conrail asserts that Mr. O'Hare was notified on May
9,
1966
for recall but that Mr. O'Hare had refused such recall. Mr.
O'Hare's personnel records do indicate an unsigned notation as follows:
"5-9-66,
Refused call for steady employment USO Insp." Two other
documents in Mr. O'Hare's personnel records for the year
1966
make
reference to said May
9, 1966
notation.
11. Mr. O'Hare asserts and swears by affidavit that he never received any
notice, by any means whatsoever in the year
1966
from the then New York
Central to return to work. Mr. O'Hare further asserts and swears that
in the years between
1963
up to his recall in
1973,
that he never
received any notice whatsoever for recall except for said notice in
1973.
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 were given due notice of hearing thereon.
Claimant, a Carman, is employed by the Carrier at Springfield, Massachusetts.
Claimant contends the Carrier has arbitrarily refused to adjust his seniority
date to reflect twenty-seven years of service.
Claimant first entered service as an employe of the former New York Central
Railroad on January 21,
1953.
Claimant was furloughed in
1963.
Claimant asserts
that he was not recalled to service until
1973
when he accepted employment as a
Car Inspector. Carrier records indicate that Claimant refused a call for permanent
employment as a Car Inspector in
1966.
As a consequence of Claimant's alleged
Form 1 Award No. %'0%°
Page 3 Docket No. 9116-I
2-CR-I-' 82
refusal, his name was dropped from the seniority roster. Claimant has specifically
denied that he received any oral or written offer to return to work in 1966. In
1973, the Carrier rehired Claimant (as a new employe) and the seniority rosters
since 1973 have shown Claimant's seniority date as July 9, 1973. Claimant
characterizes his return to service in 1973 as a recall instead of new employment.
In addition, Claimant asserts that the Carrier recalled employes with post 1953
seniority dates during the period from 1963 to 1973 before giving Claimant an
opportunity to return to work. Claimant now asks this Board to adjust his
seniority date to 1953, to award him an unspecified amount of back pay for the
ten year period he was out of service and to provide him with retroactive
benefits.
The Carrier contends that this claim is without merit and argues that
company records conclusively demonstrate that Claimant refused a recall to
employment in 1966. As a threshold issue, the Carrier asserts this Board lacks
jurisdiction to adjudicate the claim on its merits because the claim is untimely
and because the claim was not handled in accord with Section Three, First (i)
of the Railway Labor Act, 45 U.S.C. 9 153, First (i).
Claimant knew, in 1973, that he had been given a new seniority date. Yet,
inexplicably, he failed to tender the Carrier any written protest until 1978.
The Railway Labor Act requires that grievances
"...
shall be handled in the usual
manner up to and including the chief operating officer of the carrier designated
to handle such disputes ..." 45 U.S.C. § 153, First (i). The usual manner is
established by the parties and incorporated into the controlling collective
bargaining agreement. The applicable agreements sets forth precise time limits
for filing a written grievance. (Regulation 7-A-2 of the September 1, 1977
Agreement specifies a twenty day time limit for presenting a written grievance.,)
In this case, Claimant did not file a grievance until 1978 which was five years
after the Carrier purportedly violated the agreement. Further, even after
presenting his grievance, Claimant did not follow the appropriate appeal process
on the property. A literal application of the Railway Labor Act precludes us from
addressing this claim on its merits. See Second Division Awards No. 7156 (Marx)
and No. 7799 (Roukis).
Claimant though has conceded that the claim was not prosecuted in strict
adherence to Section Three, First (i) of the Railway Labor Act and the labor
agreement, but, nonetheless urges this Board to assume jurisdiction because any
deviations from the required procedure were mere technicalities. According to
Claimant, the merits of his claim should be heard to further the policy of
substantial justice and fair play in labor relations. We disagree. It would
be patently unfair to subject the Carrier to potential liability on a claim which
is brought five years too late. Allowing Claimant to resurrect a stale claim
would undermine the equally important policy of promoting stability and
predictability in the labor-management relationship. In Second Division Award
No.
7453
(Eischen), we rejected the argument that this Board could assume
jurisdiction based on general equitable principles when the record contains clear
procedural defects. In Award No.
7453,
we said:
Form 1
Page 4
Award No.
Docket No. 9116-I
2-CR-I-'82
"We cannot ignore these basic defects which render this
claim defective. Nor can we treat them as 'mere
technicalities' as urged by the Claimant and go to the
merits of the case to 'right a wrong' or to 'do basic
justice as a matter of equity and good conscience'.
We are not the Chancery Court, but rather a statutorily
established Board of Adjustment. We take our mandate
and our authority from the Act and from Agreements which
bind us just as they do the parties, which come before us.
Where, as here, a claim is void ab initio, we simply have
no jurisdiction to reach the merits,. whatever we might
think of the equities involved. In the face of a clear
failure to comply with the time limits, we have no
alternative but to dismiss the claim as barred from _
consideration."
Thus, we must dismiss this claim for lack of jurisdiction and we do so without
reaching or expressing any view on the merits of the claim.
A W A R D
Claim dismissed.
Attest: Acting Executive Secretary
National Railroad Adjustment Board
By
semarie Brasch - Administrative Assistant
2._
Date at Chicago, Illinois, this '8t "` daY of
Sril,
1982.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division