Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 10873
SECOND DIVISION Docket No. 10623
2-PFE-CM-'86
The Second Division consisted of the regular members and in
addition Referee Jonathan Klein when award was rendered.
(Brotherhood Railway Carmen of the United States
( and Canada
Parties to Dispute:
(Pacific Fruit Express Company
Dispute: Claim of Employes:
1. That the Pacific Fruit Express Company violated the controlling
agreement, particularly Rules 14 and 37, when they refused to
permit Carman J. Fi. Caves, Jr. to work his regular assignment
on January 15, 1982, Tucson, Arizona.
2. That accordingly, the Pacific Fruit Express Company be ordered
to compensate Carman Caves in the amount of six and one-half
(6 1/2) at pro rata rate, plus fifteen percent (15y) interest
account being denied the right to fill his assignment on
January 15, 1982.
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.
The material facts in this case are simple and undisputed. Claimant
was employed as a Carman at Carrier's Tucson, Arizona car repair shop. He was
scheduled to report for duty at 7:00 A.M. on January 15, 1982. At approximately 6:45 A.M. the Claimant telephoned the Carrier and informed a Time Card
Clerk that he was having car trouble. The Claimant was unable to give the
Clerk a definite time when he would be able to report for duty. When the
Claimant did report at 8:30 A.M., 1-1/2 hours beyond his starting time, his
position had been filled and he was sent home by the General Foreman. The
Claim before this Board demands payment for the six and one-half hours
Claimant states he would have worked if permitted to do so by the Carrier.
Form 1
Page 2
Award No. 10873
Docket No. 10623
2-PFE-CM-'86
Prior to addressing the merits of this dispute, the Carrier has
raised as a procedural defense that the Claim is barred by the Organization's
failure to file a timely appeal during the handling of the Claim on the
property. This defense is based on Carrier's contention that Rule 36 of the
applicable Agreement required a rejection by the Organization within sixty
(60) days after denial of the Claim by Carrier's highest Officer. A review of
the procedural posture of this case reveals that the essential communications
between the parties occurred as follows:
March 11, 1982 - Organization files original Claim
with Acting Mechanical Superintendent.
April 1, 1982 - Denial of Claim by Carrier's
Superintendent of the Mechanical Department.
July 6, 1982 - Organization's appeal to Carrier's
Manager of Personnel.
[Mutual extensions of time for further consideration
of Claim, conferencing and investigation.]
March 8, 1983 - Carrier's highest Officer designed
to handle dispute denies Claim (no mention of any
time bar to July 6, 1982 appeal).
5. November 11, 1983 - Agreement to extend the nine (9)
month period referred to in Rule 36, Note: 2:1(c) of
the current Agreement until January 31, 1984.
6. December 13, 1983 - Notation Agreement on Nov. 11,
1983 Agreement by poth parties, extending the nine
month period until March 15, 1984.
7. January 30, 1984 - Organization's rejection of
Carrier's March 8, 1983 denial of Claim.
Rul entirety, as
e
36, Note 2:1.(c) of the applicable Agreement states in its
follows:
"The requirements outlined in paragraphs (a)
and (b), pertaining to appeal by the employe
and decision by the Carrier, shall govern in
appeals taken to each succeeding officer,
except in cases of appeal from the decision of
the highest officer designated by the Carrier
to handle such disputes. All claims or
grievances involved in a decision by the
highest designated officer shall be barred
unless within 9 months from the date of said
officer's decision proceedings are instituted
by the employe or his duly authorized representative before the appropriate division of
Form 1
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Award No. 10873
Docket No. 10623
2-PFE-CM-'86
"the National Railroad Adjustment Board or a
system, group or regional board of adjustment
that has been agreed to by the parties hereto
as provided in Section 3 Second of the Railway
Labor Act. It is understood, however, that
the parties may by agreement in any particular
case extend the 9 months' period herein
referred to." (Emphasis supplied)
The Carrier's contention that Rule 36 requires a rejection by the
Organization within 60 days from receipt of denial of a claim by Carrier's
highest Officer designated to handle such disputes, or the matter is to be
considered closed, is contractually unfounded. Note 2:1.(c) to Rule 36,
quoted above, carves an express exception to the 60 day Time Limit Rule for
appeal from the decision of the highest Officer. The contractual bar, if any,
to an appeal of a denial by the Carrier's highest Officer is the nine month
period within which proceedings may be instituted before this Board. This
nine month period may be extended by agreement. In this case, the Board finds
that the parties extended the nine month period by mutual agreement to March
15, 1984. The Board finds the Organization's January 30, 1984, rejection of
the March 8, 1983, denial of they Claim by Carrier's highest designated Officer
to be mere surplusage. Carrier has presented no evidence that the Organization's appeal to this Division is untimely and not within the 9 month period
as extended by Agreement, or that the Agreement otherwise calls for a denial
of the decision of the highest Officer designated by the Carrier to handle
such disputes.
Turning to the merits, the Board finds no evidence in the record that
Claimant received permission from the Carrier to absent himself from his
duties on January 15, 1982. It is true that Claimant did notify the Carrier
that he would be late for work, but he was unable to say when he could be
expected. In so doing, the Claimant fulfilled a portion of his contractual
obligation to the Carrier. Indeed, had he failed to notify the Carrier,
Claimant may have been subject to discipline. The fact remains, however, that
the Carrier did not grant Claimant a time deadline or "grace period" within
which an appearance of his person on the property would have guaranteed him
work for the balance of the shift. Due to unforseeable consequences which
may, or may not have been beyond his control, Claimant was unable to report
for duty as required. The fact an employee reports that he has been detained
from work does not, standing alone, give him carte blanche as to his time of
arrival, and a guarantee of work for the balance of his shift. "There is no
rule in the Schedule Agreement which requires Carrier, in this dispute, to
permit an employe to work when tie reports for an assignment late. Petitioner's position on this point must be rejected. Carrier has the unqualified
right to insist on adherence to working hours (not in conflict with the
Agreement); and employes have the obligation to report on time for their
scheduled hours in the absence of good and sufficient cause." Second Division
Award No. 8045.
Form 1
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Award No. 10873
Docket No. 10623
2-PFE-CM-'86
The Organization's position that Claimant was disciplined by not
allowing him to work the balance of the shift has previously been rejected by
this Board. Second Division Awards Nos. 9781, 8045 and 7946. Award No. 9781
involves facts almost identical to this dispute. The Claimant in that case
had called in an hour prior to the start of his shift that he would be late
for work due to car trouble. The Claimant appeared three hours after the
start of his shift, but was not permitted to work the remainder of the day.
In rejecting the Organization's contentions that Claimant had complied with a
Rule. similar to 14(C), and was improperly disciplined without a Hearing, the
Board stated:
"It breaks no new ground for this Board to
observe that an employee complying with Rule
16 by calling to say that he will be detained
is not necessarily guaranteed work for that
part of the day in which he becomes available.
Rule 16 notification enables Management to be
aware of who will or will not be available at
the start of the shift. Beyond that the
Carrier has to adjust its plans and proceed
with the day's work, particularly when there
is no indication of when the employee would
show up during the day (as was the case here),
and there is no guarantee that a late employee
will fit into these plans. The exclusion of
Claimant from work for the remaining five
hours was not disciplinary action in this
context, a general principle found in numerous
Second Division-Awards including Award Nos.
7384, 7355, 7567, 7838, 7990, 7946 and 8045."
A W A R D
.aim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest.
Nancy J. r - Executive Secretary
Dated at Chicago, Illinois, this 4th day of June 1986.