Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 10893
SECOND DIVISION Docket No. 10745-T
2-B&O-CM-'86
The Second Division consisted of the regular members and in
addition Referee Eckehard Muessig when award was rendered.
(Brotherhood Railway Carmen of the United States
( and Canada
Parties to Dispute:
(Baltimore and Ohio Railroad Company
Dispute: Claim of Employes:
1. That the Baltimore and Ohio Railroad Company violated the
controlling agreement when on the date of December 26, 1982 they arbitrarily
deprived Carmen, A. Nocera, and S. Medina, New Castle Jct., Youngstown, Ohio,
of work to which they were entitled, work of inspecting, testing air brakes,
etc., as per the provisions of Rule 144 1/2 of the controlling Agreement, and
allowed train crews to perform such work in their stead, while claimants were
placed in temporary furloughed status.
2. That the Baltimore and Ohio Railroad is in violation of the time
limits for responding to claims or grievances, as per the provisions of Rule
33 of the controlling agreement, relative to the instant case.
3. That accordingly, Carrier be ordered to compensate Claimants
herein account such violations of their controlling agreement as follows:
Carman: A. Nocera for eight (8) hours at the
time and one-half rate of pay
Carman: S. Medina for two (2) hours and forty
(40) minutes at the time and one-half
rate of pay.
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.
From 1 Award No. 10893
Page 2 Docket No. 10745-T
2-B&O-CM-'86
With respect to the essential issues of this dispute, the Board
concludes that these are identical to those addressed in Second Division
Award No. 10892. That case also was between the same parties. There is a
difference, however, because in this case, the Organization also asserts that
the Carrier violated Rule 33 of the Agreement. That Rule, in pertinent part,
reads:
"Should any such claim *** be disallowed, the
Carrier shall, within 60 days from the date same
is filed, notify whoever filed the claim *** in
writing of the reasons for such disallowance. If
not so notified, the claim *** shall be allowed
as presented, but this shall not be considered as
a precedent *** as to other similar claims or
grievances."
Turning to this threshold issue, the Organization's Claim was
submitted on February 18, 1983, and it was received by the Carrier on February
22, 1983. It was then denied by letter dated April 19, 1983. The Organization contends that this denial letter was sent by the Carrier's mail service
and was not received until April 27, 1983, six (6) days past the 60-day time
limits specified by Rule 33. In support of this contention, the Organization
has submitted a photocopy of an envelope which it maintains contained the
April 19 letter. The envelope does not bear a U.S. Postal Service postmark.
On this issue, the evidence before the Board consists of a copy of
the Carrier's denial letter on which the date April 19 is shown and the
Organization's photocopy of the front of an envelope addressed to it. This
evidence is insufficient. The Board has no way of knowing when the letter was
sent or what was contained in the envelope. Accordingly, we do not find that
sufficient evidence has been submitted by either party to rule on this issue.
Consequently, there is nothing to distinguish this Claim from Award No. 10892.
Part 2 of the Claim must, therefore, be dismissed. Concerning the merits, the
facts in this matter are also identical to Second Division sustaining Award
No. 10117, adopted October 10, 1984, between the same parties. Since there is
no new evidence to warrant a different conclusion, this Board sustains Part 1
of the Claim, based upon Award No. 10117.
With respect to Part 3 of the Claim, we are satisfied that the
violation was not merely technical nor a trivial matter, since the Petitioner
did lose work. Moreover, the Board notes that the damages claimed were not
challenged on the property, although the Carrier had ample opportunity to
question the amount claimed. Accordingly, following the same concepts that
controls the parties with respect to other matters not raised on the property,
we sustain the amount of damages claimed.
Form 1 Award No. 10893
Page 3 Docket No. 10745-T
2-B&O-CM-'86
A WAR D
Claim sustained in accordance with the Findings.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest:
'e~
Nancy J. er - Executive Secretary
Dated at Chicago, Illinois this 25th day of June 1986.