NATIONAL RAILROAD ADJUSTMENT BOARD
Form 1 SECOND DIVISION Award No. 125:30
Docket No. 12493
93-2-92-2-11
The Second Division consisted of the regular members and :in
addition Referee Eckehard Muessig when award was rendered.
(International Brotherhood of Electrical
(Workers
PARTIES TO DISPUTE:
(CSX Transportation, Inc., (formerly Louisville
(and Nashville Railroad Company
STATEMENT OF CLAIM:
1. "That the CSX Transportation, Inc., (formerly
Louisville and Nashville Railroad Company) violated
Article V of the August 21, 1954 amendment to the
working agreement, which requires Carrier to deny
claim within sixty (60) days or allow claim as
presented.
2. That the CSX Transportation, Inc. (formerly
Louisville and Nashville Railroad Company) further
violated, but not limited to, Rule 19 of the
working agreement effective September 1, 1943, as
amended, when the Carrier failed to compensate
Electrician R. B. Thompson the correct wage while
working as a temporary foreman for forty-six (46)
days during the period of October 27, 1989 thru
January 1, 1990.
3. That the CSX Transportation, Inc. (formerly
Louisville and Nashville Railroad Company) be
ordered to compensate Electrician R. B. Thompson
the difference of $33.36 per day for the forty-six
(46) days worked as a temporary foreman."
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 employe 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.
Form 1 Award No. 12530 -
Page 2 Docket No. 12493
93-2-92-2-11
Parties to said dispute waived right of appearance at hearing
thereon.
The Claimant worked in the capacity of temporary Foreman
during the period from October 27, 1989 through January 1, 1990.
On January 8, 1990, he filed a claim with the Carrier's General
Plant Manager. The claim, in pertinent part, sought the difference
between what the Claimant has identified as "code 700 pay" and the
minimum amount that has ever been paid to a permanent Foreman. He
claims that there is a difference of $33.36 per day. In pursuing
his claim, the Claimant relied upon Rule 19(c) which reads:
"Should an employee be assigned temporarily to fill the
place of a foreman, the established rate for the
position, and the rules and working conditions that are
attached thereto, will apply during such temporary
assignment."
The Carrier did not respond to the claim within sixty days as
required by Article V, Section 1(a) of the August 21, 1954
Agreement. Therefore, the Organization submits "the claim or
grievance shall be allowed as presented."
We note that the Carrier has advanced certain arguments to
this Board that were not made during the handling of this dispute
on the property. Therefore, these were not considered in our
deliberations.
The Carrier's contention that it did not respond to the
Claimant's written claim because the Plant Manager thought the
matter had been resolved to the Claimant's satisfaction is not
substantiated by the evidence. We conclude that the claim must be
sustained on the grounds that the Carrier defaulted by not timely
denying the claim which had been filed with the designated Carrier
officer on January 8, 1990. This decision is based solely upon the
procedural violations by the Carrier and no opinion is expressed on
the merits of the claim.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest ,
4a;;ncy ever - Secretary to the Board
Dated at Chicago, Illinois, this 28th day of April 1993. '"