Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 9909
SECOND DIVISION Locket No. 9218
2-B& O-CM-' 8 4
The Second Division consisted of the regular members and in
addition Referee Martin F. Scheinman when award was rendered.
( Brotherhood Railway Carmen of the United States
Parties to Dispute: ( and Canada
( Baltimore and Ohio Railroad Company
Dispute: Claim of Employes:
1. That Carrier violated the controlling Agreement, specifically, Rule
28 of the Shop Crafts' Agreement, when on the date of September 23,
1979, two (2) carmen were ordered from Grafton, W. Va. to change
wheels on loaded rail car # 187, at the Parkersburg, W. Va. terminal,
Grafton, W. Va. and Parkersburg, W. Va. being two entirely separate
seniority districts.
2. That Carrier has significantly and knowingly altered the original
claim pertaining to the herein referred to incident, thereby subjecting
them to impropriety with regard to the handling of this claim on the
property.
3. That Carrier be ordered to compensate Claimant, Gary L. Hoff for
losses arising account of this incident, for a total of six (6)
hours pay at the time and one-half rate, on the date of September
23 , 1979.
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 employes 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.
This dispute involves conflicting contentions by the Organization and
Carrier as to procedural and substantive aspects of the instant claim.
The Organization maintains that on September 23, 1979, Carrier violated
Rule 28 of the Agreement by permitting Carmen from Grafton, West. Virginia to
change wheels on loaded rail car #187 at its Parkersburg, West Virginia terminal.
According to the Organization, its claim in this dispute, was filed by
Local Chairman R. Martin on November 21, 1979. As the Organization views it,
M. W. Phebus, Manager - Car Department, significantly altered its claim on
December 21, 1979 when :2e rejected it. On that day, Manager Phebus replied to
Local Chairman Martin. He indicated that the claim had been filed on November
12, 1979 and that it concerned events of October 23, 1979, and not September
23 , 1979.
Form 1 Award No. 9909
Page 2 Locket No. 921&'
2-B& O-CM-' 84
Thus, the Organization reasons that Carrier has significantly altered the
claim in this dispute. Therefore, the Organization concludes that the claim
should be sustained on the basis of impropriety.
In addition, the Organization argues that the claim should be sustained
on its merits. The Organiation points out that Grafton and Parkersburg are in
two separate seniority districts. It notes that Rule 28 provides, in relevant
part that, "Seniority of employees in each craft covered by this agreement
shall be confined to the point employed
...."
According to the Organization,
Claimant G. L. Hoff, of Parkersburg, was available for call on September 23,
1979. Thus, the Organization concludes that Carrier violated Rule 28 when it:
required Carmen from the Grafton seniority district to perform work in the
Parkersburg seniority district instead of Claimant.
Carrier, on the other hand, alleges that it is the Oranization who has
significantly altered the original claim. It contends that. it received a
claim from the Organization dated November 12, 1979. That claim referred to
an incident which occurred on GL-tober 23, 1979. In Carrier's view, it
properly denied this claim. However, it argues, the Oranization's appeal of
the denial, on February 14,..1980, referred to a new claim stating the date of
the occurrence as September 23, 1979. Thus, Carrier maintains that it is the
Organization which has altered its claim, and not Carrier.
Additionally, Carrier notes that it denied the Organization's claim on
December 12, 1979. However, it received the Organization's appeal of that
denial on February 20, 1980, sixty-one days thereafter. Rule 33 requires that
appeals must be taken within 60 days from "receipt of notice of disallowance."
Accordingly, Carrier concludes that the Organization processed its appeal in
an untimely manner.
Finally, Carrier insists that the claim should be dismissed on its
merits. It contends that employes at Parkersburg did not possess the
necessary experience to perform the disputed work. Therefore, it argues that:
it had to send Carmen from Grafton, who had previously performed such work, to
instruct Parkersburg Carmen in replacing the car's wheels. Accordingly,
Carrier asks that the claim be denied on its merits as well as for procedural
reasons.
It is clear that this claim must fail. The record evidence reveals that:
Local Chairman Martin initiated this claim with Carrier via letter dated
November 12, 1979. The letter states that it is a time claim for G. L. Hoff
account of certain Carmen performing work in Parkersburg terminal on "obtober
23, 1979." Carrier denied this claim on December 21, 1979. The Organization
appealed Carrier's denial on February 14, 1980. However, its appeal refers to
a claim submitted "November 21, 1979" relating to work performed on "September
23, 1979." Thus, on February 14, 1980, the Organization significantly alters
its initial claim.
Form 1
Pa ge
3
Award
No.
9909
Locket
No.
9218
2-B& O-CM-' 8 4
Such alteration mandates that the claim be dismissed. Section .3, First
(i) of the Railway Labor Act requires that a claim must "be handled in the
usual manner up to and including the chief operating officer of the carrier
designated to handle such disputes, ..." In Award No. 6657, Claimant sought
to amend a claim seeking a $.12 per hour differential to one for a $.06 per
hour differential. This Board concluded that the amended claim was
"substantially at variance" with the initial one. Here, the Organization has,
amended its claim to refer to a completely different date of occurrence.
Similarly, we, too, conclude that such change substantially alters the original
claim. Thus, we find that the dispute has not been handled in "the usual
manner" on the property. Accordingly, the claim must fall on this ground
alone.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Nancy J. r - Executive Secretary
Dated at Chicago, Illinois,
this 16th day of May, 1984