Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 11927
SECOND DIVISION Docket No. 11689
90-2-88-2-233
The Second Division consisted of the regular members and in
addition Referee George S. Roukis when award was rendered.
(Brotherhood Railway Carmen/Division of TCU
PARTIES TO DISPUTE:
(South Buffalo Railway Company
STATEMENT OF CLAIM:
1. That the South Buffalo Railway Company violated the controlling
Agreement dated September 1, 1987 and the September 3, 1987 Agreement as it
applies to Paragraph 3.7, Deduction for Public Pension, of the August 23, 1984
Pension Agreement.
2. That the South Buffalo Railway Company violated the Favorite
Nation/Me Too letters dated September 3, 1987 when they failed to apply all
economic aspects of the Carrier's contractual proposals uniformly to all
bargaining unit represented Crafts and Classes of employes.
3. That the carrier violated Rule 30 of the controlling agreement
when it failed to respond to the Organization's appeal dated May 12, 1988
within the 60 day requirement, and therefore, claim to be allowed as presented.
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 were given due notice of hearing thereon.
In considering this dispute, there are two threshold procedural
questions that must be carefully assessed. Firstly, the Organization points
out that Carrier's Ex Parte Submission does not contain a signature as required by Circular No. 1 and thus the instant Claim must be allowed consistent
with the precedential decisions of the Board. See for example Second Division
Awards 9701, 11616 and Third Division Awards 23170 and 23283.)
Form 1 Award No. 11927
Page 2 Docket No. 11689
90-2-88-2-233
Contrariwise, Carrier contends that its Ex Parte Submission was properly executed, since the designated official's name and title were properly
typed at the closing portion of the Submission. Several Awards were cited to
support Carrier's position. (Second Division Awards 11616 and 9701; Third
Division Awards 27658, 23283, 23170; Fourth Division Awards 4600 and 4469.)
Secondly, the Organization contends that the Claim should be allowed
as presented, since Carrier failed to respond to its second step appeal in a
timely fashion. Specifically, the Organization charges that Carrier did not
respond to its May 12, 1988 appeals letter until July 25, 1988, some fourteen
(14) days after the expiration of the mandatory sixty (60) days limit. Article 30, Grievances, Paragraph C reads as follows:
"If a disallowed claim or grievance is to be
appealed, such appeal must be in writing, and
must be taken within 60 days from receipt of
notice of disallowance, to the Superintendent of
the Railroad or his designee. Failing to comply
with this provision, the matter shall be considered closed, but this shall not be considered
as a precedent or waiver of the contentions of
the Employees as to other similar claims or
grievances. The Superintendent or his designee
shall make the final decision on behalf of the
Company, and such decision shall be made within
60 days after the receipt by him of the appeal.
If the Superintendent or his designee shall fail
to make his decision within such 60 days, the
claim or grievance shall be allowed as presented, but this shall not be considered as a
precedent or waiver of the contentions of the
Company as to other similar claims or grievances."
It cited as controlling Second Division Awards 7652, 8089, 8116, 8243, 9354,
10157, 10880 and Awards 4 and 25 of Public Law Board 3166.
In response, Carrier asserts that even if an untimely response is
established, liability can only be restricted to the date of late denial,
which herein was July 25, 1988. It cited Third Division Awards 26213 and
24269 as controlling on this interpretative point. In Third Division Award
24269, which Award 26213 relied upon, the Board held:
"However, Carrier's liability is not infinite.
As the National Disputes Committee ruled in
Decision No. 16, '(the) receipt of the Car
rier's denial letter . . . stopped carrier's
liability arising out of its failure to comply
with Article V of the August 21, 1954 Agree
ment.' Here Carrier's denial of the claim was
dated April 23, 1980. Thus, Carrier's liability
should cease on April 23, 1980, the presumed
low
date-of the Organization's receipt of Carrier's
denial."
Form 1 Award No. 11927
Page 3 Docket No. 11689
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In reviewing the Organization's assertion of an unsigned Submission,
the Board takes judicial notice of Fourth Division Award 4469, where the Board
held that a typewritten name on the Submission was a sufficient identifying
signature. Accordingly, since the name and title of Carrier's official was
typed at the end of the Carrier's Ex Parte Submission herein, we find the
Submission in accordance with the requirements of Circular No. 1.
On the other hand, the evidence is clear that Carrier failed to
respond to the Organization's May 12, 1988 appeals letter in a timely fashion
and, thus, a procedural violation indisputably occurred. There are no indications that the Organization waived its procedural rights on the property or
that the parties habitually failed to observe the grievance appeals time limit
requirements and no estoppel elements present that would reasonably bar the
Organization from asserting such rights. As to our disposition, we are certainly mindful of the interpretative parameters of Third Division Awards 26213
and 24299, but said decisions considered the relevancy of Decision No. 16 of
the National Disputes Committee. This Committee was established in 1963 by
various non-operating unions and Carriers to resolve certain disputes that
were submitted to the Third Division. The Organization herein was not a member of said Committee and rested its position upon the applicable case law
developed under the judicial auspices of the Second Division. In examining
these Awards, particularly Second Division Awards 7652, 8089, 8243, 9354,
10157, 10880 and Awards 4 and 25 of Public Law Board 3166, we find that the
Claims involved were allowed where Carrier failed to comply with applicable
procedural time limits. We will not reiterate verbatim the rationale of these
decisions except to note that the Board has never considered procedural violations as occupying a lesser status of judicial significance or as a basis
for ignoring the sixty (60) day time limit appellate requirements, where the
Claim on its face appears without defensible substance. We further note in
this connection that had the Organization failed to comply with the Agreement's time limits, the Claim would have also been dismissed in toto on
procedural grounds. This would have been so under the explicit language of
Article 30, even assuming arguendo that the Claim was on its face meritorious
and involved extensive liability. The Sword of Damocles falls both ways. We
were not privy to the parties negotiations and hence we are constrained by the
applicable provision's language and the decisions of the Division. Article
30, Paragraph C states in pertinent part that if the Superintendent or his
designee fails to make his decision within "such 60 days" the claim or grievance shall be allowed as presented. There are no qualifications, restrictions or waivers appended to this default. For these reasons, and consistent
with our decisions in the Second Division Awards cited and the two (2) decisions of Public Law Board 3166, the Claim as presented shall be allowed. We
shall not address the merits of the case.
A W A R D
Claim sustained in accordance with the Findings.
Form 1
Page 4
Attest:
ancy
Award No. 11927
Docket No. 11689
90-2-88-2-233
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of the Second Division
Executive Secretary
Dated at Chicago, Illinois, this 22nd day of August 1990.