Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
SECOND DIVISION
Award No. 13302
Docket No. 13105
98-2-96-2-4
The Second Division consisted
of
the regular members and in addition Referee
Eckehard Muessig when award was rendered.
(Brotherhood Railway Carmen, Division
of
( Transportation Communications International Union
PARTIES TO DISPUTE:
(CSX Transportation, Inc. (former Louisville and
( Nashville Railroad Company)
STATEMENT OF CLAIM:
"1. That the Louisville and Nashville Railroad Company, (now a part
of CSX Transportation) violated the controlling agreement rights
under Rule 27,
of
Nashville, TN Carman C. Howard, when Carrier
denied claimant, a journeyman carman, his transfer rights under
said rule, to a carman's vacancy at New Orleans, LA, and instead
allowed Nashville, TN Carman Apprentice, M. D. Williams to
transfer to New Orleans, LA on January 18, 1993 through March
12, 1993.
2. That the Louisville and Nashville Railroad Company, (now a part
of
CSX Transportation) violated the controlling agreement rights
under Rule 32 and Appendix `D',
of
Nashville, TN Carman C.
Howard, when Carrier failed to respond in a timely manner to local
chairman's initial claim dated March 12, 1993.
3. Carrier should now be ordered to compensate claimant for all lost
pay from January 18, 1993 through March 12, 1993."
FINDINGS:
The Second Division
of
the Adjustment Board, upon the whole record and all the
evidence, finds that:
Form 1 Award No. 13302
Page 2 Docket No. 13105
98-2-96-2-4
The carrier or carriers and the employee or employees involved in this dispute
are respectively carrier and employee 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.
On December 21, 1992, the Carrier's Mechanical Superintendent met with the
Claimant and two Carmen Apprentices for the purpose of filling two Carmen vacancies
at the Carrier's New Orleans, Louisiana, Car Shop. The Superintendent selected the
two apprentices to fill the vacancies.
On March 12, 1993, the Local Chairman filed a claim asserting that the Claimant
should have been selected to fill one of the vacancies. The Organization claimed that the
Carrier violated a portion of Rule 118, Paragraph D which reads "after all carmen in
good seniority standing at all points have been restored to service, in accordance with
Rule 26, and additional carmen are needed, apprentices shall be handled in the following
order." Here the Organization submits the Claimant had Agreement rights beyond the'.
apprentices.
In its letter dated April 9, 1993, the Carrier denied the claim, because the
Claimant did not follow the "established procedure for requesting a transfer" and
because the Claimant did not have a good safety record.
On July 2, 1993, the Organization requested that the claim be paid because it had
not received the Carrier's denial letter, dated April 9, until June 21, 1993, when it was
hand delivered to the Organization. The Organization notes that the Carrier had 60
days from the time the claim was filed to deny it. In this case, because the Organization
did not receive the denial letter until June 21 (well beyond the 60 days imposed by
.agreement) the Carrier breeched the Agreement and. therefore, must pay the claim.
On July 14, 1993, the Carrier asserted to the Organization that it had mailed its
denial letter on April 9. It provided a "screen print" that showed the date the letter was
created to support its contention of having mailed the letter on April 9.
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By letter dated August 11, 1993, the Organization reiterated its position that the
claim should be allowed because of the time limit violation.
The Carrier's response, dated October 1, 1993, again rejected the claim when it,
in particular part, stated as follows:
"It is noted that you have substantially amended the claim appeal.
The claim submitted by Local Chairman Long was for the difference
between the Carman rate of pay earned by Carman Apprentice M.D.
Williams (whose request for transfer to New Orleans was honored by the
Carrier) and the pay received by Claimant working reduced rate at the
Nashville Project Shop for the period January 18, 1993 until March 12,
1993. The claim you have appealed is that Claimant be given full seniority
rights to one of the Carmen positions he requested on December 21, 1992.
Since the claim you are appealing was never handled on the property, it is
barred by the Time Limit on Claims Rule of the Agreement. Furthermore.
Local Chairman Long's initial letter of claim dated March 12, 1993 was
dated and received substantially beyond sixty days from December 21,
1992, the true date of the occurrence on which you are basing this appeal.
Accordingly, even had the initial claim been made in the form you are now
appealing, it would have been barred by the Time Limit on Claims Rule
of the Agreement.
The Organization's own violation of the Time Limit Rule both on
the original presentation of this claim and on appeal is particularly
important in this case, since the claim is being progressed solely on the
basis of an alleged violation of the Time Limit Rule by the Carrier. The
Carrier denies any violation of the Time Limit Rule. Mechanical
Superintendent Jones did respond to Local Chairman Long's claim in a
timely manner on April 9, 1993. When Mr. Long inquired about the reply,
he was furnished another facsimile copy which he admitted receiving on
June 21. 1993. 11r. Jones furnished as proof of sending his original reply
in the form of the computer print screen which shows the date the letter
was created.
Although you have not addressed the merits of the claim on appeal,
it is without merit under the Agreement Rules. The Transfer Rule. Rule
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20, requires an active employee desiring transfer to another location to
make application to transfer so that applications can be considered in
seniority order. Mr. Howard did not make a written application to
transfer to New Orleans, nor did he file such a transfer request with the
Carrier as is required. Accordingly, Mr. Howard was not in compliance
with Agreement requirements for consideration for transfer to another
position at New Orleans."
In its reply to the Carrier, dated April 14, 1994, the Organization, in pertinent
part, stated:
"In response to these allegations, first of all I would point out that
this claim was indeed handled on the property by Local Chairman R.E.
Long on March 12, 1993 and no time is being claimed for December 21,
1992. This was merely a date that Mechanical Superintendent Jones met
with Carman Apprentice M.D. Williams and Claimant C. Howard, III and
a claim could not be filed in behalf of Carman Howard until his agreement
rights were violated when Carman Apprentice Williams was allowed to
work at New Orleans, Louisiana on January 18, 1993. Therefore, no time
limit was expired on March 12, 1993 when the Local Chairman filed this
claim.
The Organization does indeed take exception to Carrier violation of
Time Limit Rule but the fact of the matter is, Carman Howard's
Agreement Rights were violated when he wasn't allowed to work at New
Orleans, LA as a Bonafide Carman.
I would point out that, first of all, at no time did Mr. Jones furnish
as proof of sending his original reply in the form of a computer print
screen that showed the date the letter was created and even if he did, that
still would not be substantial proof that Local Chairman Long was sent a
copy of alleged letter. As previously stated, the Mechanical
Superintendent's alleged April 9, 1993 letter was not received by the Local
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98-2-96-2-4
Chairman until June 17, 1993, which was a facsimile copy dated June 17,
1993, and it is totally rejected.
In response to this allegation and as you well know the transfer
request list had been exhausted for filling carman positions at New Orleans
in December, 1992, when 1 met personally with Mechanical
Superintendent Jones at the Nashville, Tennessee Project Shop to assist in
filling vacancies at New Orleans, Louisiana. Mr. Jones took it upon
himself and chose the two (2) apprentices to work in New Orleans in
January, 1993, over Carman Howard, denying Carman Howard his rights
under the controlling Agreement, as outlined in Local Chairman's initial
claim dated March 12, 1993. Therefore, your allegations are not
supported."
Following further correspondence on the property, the claim was progressed to
the Board for resolution.
Based on the record developed on the property, the Board finds that the claim
must be sustained because of procedural error by the Carrier on the property.
As a threshold procedural matter, the key issue is the proper construction of
Article V - Carrier's Proposal No. 7, Paragraph (a) which reads as follows:
"All claims or grievances must be presented in writing by or on behalf of
the employee involved, to the officer of the Carrier authorized to receive
same (see No. 7 at end of Article V), within 60 days from the date of the
occurrence on which the claim or grievance is based. Should any such
claim or grievance be disallowed, the Carrier shall, within 60 days from
the date same is filed, notify whoever filed the claim or grievance (the
e_m_plovee or his representative) in writing of the reasons for such
disallowance. If not so notified, 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 Carrier as to other similar claims or grievances."
(Emphasis added)
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The question is whether the Organization was "notified" in writing within the
meaning of the above-cited Rule. Absent other conditions or explanations by either
party, the Board concludes that "notify" as used in the above-cited Rule means "sent",
i.e. that the Carrier's decision was dispatched. The Carrier provided no evidence of
substance that it "sent" the denial letter. For example, no certified or registered mail
receipt was introduced into evidence.
With respect to the question of damages, the Board concludes that this matter is
best resolved by the payment of $1,179.65 to the Claimant as discussed by the parties
during conference on December 13, 1995.
AWARD
Claim sustained in accordance with the Findings.
ORDER
This Board, after consideration of the dispute identified above, hereby orders that
an award favorable to the Claimant(s) be made. The Carrier is ordered to make the
Award effective on or before 30 days following the postmark date the Award is
transmitted to the parties.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Dated at Chicago, Illinois, this 6th day of August 1998.