Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 11999
SECOND DIVISION Docket No. 11745
91-2-89-2-25
The Second Division consisted of the regular members and in
addition Referee John C. Fletcher when award was rendered.
(International Brotherhood of Electrical Workers
PARTIES TO DISPUTE:
(Burlington Northern Railroad Company
STATEMENT OF CLAIM:
1. That in violation of the governing Agreement the Burlington
Northern Railroad Company arbitrarily refused to allow Communications Department Electronic Technician Donald J. LaFavor to return to service from a leave
of absence. The arbitrary action of Burlington Northern deprived Mr. Lafavor
of his right to wages and overtime available to him, in addition to travel and
moving expenses that were due him.
2. That in further violation of the Agreement, the Burlington Northern Railroad did not reply to Mr. LaFavor's claim within the time limit specific by the governing rule of the current Agreement. The claim must, therefore
be allowed as presented.
3. Accordingly, the Burlington Northern Railroad should be instructed to compensate Electronic Technician Donald J. LaFavor in the amount of
$10,771.78 for lost wages and overtime plus penalties, travel and moving
expenses provided by the Agreement.
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.
On January 30, 1987, Claimant was involved in an alleged incident of
insubordination. He was given a notice to attend an Investigation dated
February 2, 1987. The Investigation was not held until June 2, 1987, having
been postponed for a variety of reasons, not the least among them the fact
that Claimant was on medical leave during part of this time at the insistence
of his personal Doctor. On June 19, 1987, Claimant was notified that he was
being disciplined with a thirty day suspension to run through July 23, 1987.
On July 24, 1987, Claimant returned to service.
Form 1
Page 2
Award No. 11999
Docket No. 11745
91-2-89-2-25
On July 1, 1987, Claimant, on his own behalf, wrote Carrier's Communications Supervisor seeking lost wages, travel and moving expenses, retroactive for a 60 day period, because Carrier had held him out of service unjustly and without good cause. At the time a copy of this letter was furnished his Organization.
On July 22, 1987, Claimant's Local Chairman filed a fourteen page
Claim on his behalf. The opening paragraph of this letter stated:
"Claim to begin on date of January 30, 1987, and
is for eight (8) hours compensation at the pro
rata rate for each day of lost time, with all
rights and benefits under Agreement or law reimbursed, and is to continue until adjusted."
The remainder of the lengthy letter reviewed previous handling given the
matter since January 30, 1987 and highlighted developments in the Investigation transcript.
On July 28, 1987, Carrier responded to the July 22, 1987, letter from
the Local Chairman, stating:
"Mr. LaFavor's leave of absence was totally at
the request of Mr. LaFavor or his personal
physician. Any claim for lost wages for that
time period is completely without merit.
Claim denied account violation of Rules 563, 564
and 570 by D. J. LaFavor as proven in investigation 87-14."
This denial was appealed on the property without settlement and was
eventually appealed to this Board where the contentions of the Organization
were dismissed and the Claim was denied in our Award 11773, dated October 4,
1989.
While the Organization was pursuing the Claim disposed of in our
Award 11773, Claimant contended, in letter dated September 29, 1987, that the
letter he had filed on July 1, 1987 had never been acknowledged. Accordingly,
he contended, the "claim" therein stood to now be allowed as presented by
reason of the application of Rule 29, the Time Limits on Claims Rule. It is
this contention which is the subject of the dispute now before this Board in
this Docket.
Form 1 Award No. 11999
Page 3 Docket No. 11745
91-2-89-2-25
It is obvious that all essential ingredients giving rise to the
subject dealt with in Claimant's July 1, 1987 letter and the Claim filed in
his behalf by the Organization in its July 22, 1987 letter are the same. It
is also obvious that the relief, with but minor semantic differences, requested in the two letters, was similar. Claimant's letter, standing alone
might, if it were adjudged to be a Claim, require a timely answer under the
parties Time Limit Rule. However, because Claimant was also having his Organization handle the matter at the same time, its subsequent timely filing must
be considered an amendment or supplement to his letter. By any measure duplication was occurring. One timely denial of the Claim would seem sufficient,
as only one, but complicated, single grievance existed.
Within the period of time in which Carrier had to make a response to
Claimant's letter, (if it were adjudged to be a claim), a lengthy, more detailed appeal was received from Claimant's Organization - an Organization
which extensively handled all facets of a complex matter with Carrier Representatives between the date of the incident, January 30, 1987 and the date of
the Letter of Discipline, June 24, 1987. The Organization's July 22, 1987
letter, which its length alone would suggest took considerable time and
thought to prepare, can only be considered as a continuation of the handling
the Organization had been giving the matter, prior to the Investigation, at
the initial Investigation, at the postponed Investigation and in the post
Investigation period. The letter must also be considered as an amendment to
the points raised in Claimant's July 1, 1987 letter and the relief sought.
The Organization was officially authorized by Claimant to handle this
matter. He did so on the record at his initial Investigation and he did so
again when the postponed Investigation was resumed. There is no record available that the Organization was not so charged between the date the discipline
was assessed and the date of its Claim letter, July 22, 1987. In these circumstances Claimant's July 1, 1987 communication cannot be considered a separate "claim" from that of July 22, 1987, as it was but preliminary and abbreviated duplication of the efforts of the Organization because the language of
Rule 29 does not contemplate duplicate claims or grievances on a single matter.
The language of the Rule specifically indicates that:
"All claims or grievances must be presented in
writing by or on behalf of the employee involved
If duplicate claims are allowed on the same grievance then the Rule would have
to be read as "by and on behalf." "Or" and "and" are different and this
difference must be recognized here.
Form 1 Award No. 11999
Page 4 Docket No. 11745
91-2-89-2-25
This Board has held in the past that progression of duplicate claims -00
covering the same subject is inconsistent with the Railway Labor Act, and,
such must be dismissed. (See Third Division Awards 19966, 20455, 20714, 20586
and Fourth Division Award 4590.)
The merits of the matter have been given final and binding adjudica
tion in Award 11773 of this Division. We are without a basis, under the Rail
way Labor Act, to modify, overturn or affirm, indeed for that matter even
review, Award 11773, which we would constructively be doing if we did anything
but enter a dismissal Award here.
A W A R D
Claim dismissed.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest
Nancy J ver - Executive Secretary
Dated at Chicago, Illinois, this 20th day of February 1991. -