Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 10956
SECOND DIVISION Docket No. 10753-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:
(The Baltimore and Ohio Railroad Company
Dispute: Claim of Employes:
1. That the Baltimore and Ohio Railroad Company violated the controlling agreement, Rule 144 1/2, when on the date of February 13, 1983, they
arbitrarily allowed train crew to perform Carmens' contractually provided for
work of inspecting, terminal air testing, etc., and in so doing, deprived,
claimant herein, Carman Carl Edwards of work to which entitled.
2. That Carrier violated the provisions of Rule 33 of the controlling agreement with regard to their handling of the instant claim on the property.
3. That accordingly, Carrier be ordered to compensate Claimant herein for all time lost as a result of the above referred to violations; two (2)
hours pay at the time and one-half rate: (equivalent to call time and/or four
(4) hours at the straight time 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.
Pursuant to Section 3, First (j) of the Railway Labor Act, as amended, notice was given to the United Transportation Union as a possible party of
interest. However, that Organization chose not to intervene in this matter.
In this dispute, the Organization has advanced its Claim on procedural and substantive grounds. With respect to the former, it asserts that
the Carrier's decisional letter denying the initial Claim was not timely filed
in accordance with the provisions of Rule 33 of the Controlling Agreement.
Form 1 Award No. 10956
Page 2 Docket No. 10753-T
2-B&O-CM-'86
Turning first to the procedural contention of the Organization, the
record sets forth a Claim letter from the Claimant, dated April 23, 1983. It
also includes a letter from the Claimant dated April 12, 1983, in which he
stated that he wished to correct the Claim date to read March 23, 1983, rather
than April 23. Moreover, in this letter, he also advised the Carrier that he
would "rewrite the time claim in order to stay in the time frame." He did
this by essentially repeating what he had earlier claimed in the letter that
was incorrectly dated April 23. The Claim date was also amended to April 12,
1983.
The record subsequently reveals an undated letter from the Carrier to
the Organization in which it denied the Claim of April 12, 1983. It is this
undated letter which the Organization cites as a foundation for its procedural
assertions that the Carrier "failed to respond to the instant claim within the
contractually provided for sixty (60) day time limit." The record does not
establish when the Organization received the undated letter.
The Carrier's defense is that, while the letter which initially
denied the claim was undated, the Labor Relations Department received its copy
of that letter on May 25, 1983, as evidenced by the receipt stamp in the upper
right hand corner of that document.
Although we abide by the self-evident rule that contractual procedural requirements are to govern both parties, the failure to date a letter,
depending on the circumstances, is not absolute proof that a letter was not
dispatched in a timely manner. Given the circumstances here, the Board finds
that the Carrier's letter of denial to the initial Claim was sent on or before
May 25, 1983, a date which is within the 60-day time frame established by the
Controlling Rule.
Turning to the merits, there is no dispute as to the relevant facts
on which the Claim is based. On February 13, 1983, a Sunday, a train arrived
at the Washington, Indiana Yard. There were no Carmen on duty that day. The
train crew made up its train, performed the air test and departed from the
Yard.
Essentially, what is at issue is the making of air tests during a
period when there was no Car Inspector on duty. Under the circumstances, the
question is whether that work belongs exclusively to the Carmen craft.
Numerous Awards, under similar conditions, have held that this work can be
performed by Trainmen and Carmen. We have no basis, on the record before us,
to not observe these past decisions and the Claim must be denied.
Form 1 Award No. 10956
Page 3 Docket No. 10753-T
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A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest:
NN ancy J. v -Executive Secretary
Dated at Chicago, Illinois, this 27th day of August 1986.