NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
PARTIES TO DISPUTE:
JOINT COUNCIL DINING CAR EMPLOYEES, LOCAL 351
JOINT TEXAS DIVISION OF CHICAGO, ROCK ISLAND AND
PACIFIC RAILROAD COMPANY-FORT WORTH AND
DENVER RAILWAY COMPANY
(Burlington-Rock Island Railroad Company)
STATEMENT OF CLAIM: Claim of Joint Council Dining Car Employees,
Local 351, for and on behalf of Freddie Lewis on the property of Joint Texas
Division of the Chicago, Rock Island and Pacific Railroad Company and Fort
Worth and Denver Railway Company, that he be restored to service with seniority unimpaired and compensated for net wage loss account of dismissal
from service on May 1, 1956, in violation of current agreement.
OPINION OF BOARD:
The Joint Texas Division is a railroad running
between Dallas and Galveston in Texas, owned and operated jointly by the
Rock Island Railroad and the Fort Worth and Denver Railroad. The Division
is operated for a five year period alternately by the personnel of one or the
other of the two railroads. However, Mr. C. W. Ruffner has been permanently
named by both operating railroads as the highest officer of appeal.
There is a contract in evidence which has in it the following:
"(b) An employe dissatisfied with a decision will have the right
to appeal in succession up to and including the highest officer designated by the Company, if notice of appeal is given the officer rendering the decision within ten days thereafter. If the final decision shall
be in favor of the employe his record will be cleared of the charge; or
if suspended or dismissed the employe will be re-instated and paid
for all time lost less amount earned elsewhere during suspension
or
dismissal.
"(c) If no further handling is begun within ninety days following decision by the highest officer designated by the Company to
handle labor disputes the case is closed and the Company's decision
will stand as rendered."
On December 14, 1955, Mr. Ruffner addressed a letter to the General
Chairman of the Dining Car Employees' Union, Local 351, Hotel and Reatau-
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rant Employees and Bartenders' International Union, part of which reads as
follows:
"As of January 1, 1956, the Fort Worth and Denver Railway
Company will take over control and operation of the Joint Texas Division of the CRI&P-FW&D. Therefore, effective January 1, 1956,
time claims will be handled as follows:
..a r
"In matters pertaining to discipline and grievances the procedure
will be as follows:
"(1) Matters pertaining to grievances and discipline
(discipline matters whether or not including time claims)
will be submitted in writing direct to the Supervisor, Dining
Car Service at Fort Worth, Texas.
"(2) Appeal from decision of Supervisor, Dining Car
Service will be made in writing to Assistant to General
Manager, Fort Worth, Texas.
"Please acknowledge receipt and understanding,"
The letter was acknowledged by the General Chairman on January 24,
1956, in a letter which reads:
"This will constitute acknowledgment of the context of your letter December 14, 1955 regarding the proper officers of your carrier
to address Time Claims, Appeals, etc."
Under date of April 9, 1956, Carrier's Superintendent instructed its Supervisor of Dining Car Service, Fort Worth and Denver Railway Co., to issue
instruction to the claimant to appear for an investigation.
A postponement was granted and the investigation was held on April 18,
1956 and under date of May 1, 1956, Mr. P. S. Cobel, Supervisor of Dining Car
Service, advised the claimant of his dismissal from the service.
On May 8, 1956, the General Chairman advised Mr. C. W. Ruffner that-
"This constitutes my appeal the case of Mr. Freddie Lewis your
consideration from the decision of your Mr. P. S. Cobel as expressed
in his letter of May 1, 1956, his file number 809-557 requesting that
Mr. Cobel's decision be reversed and that Mr. Freddie Lewis shall be
made whole.
This letter indicates that a carbon copy was sent to a Mr. Wiley-"cc
Wiley.,'
On May 11, 1956, C. W. Ruffner wrote W. S. Seltzer, General Chairman
representing the claimant the following letter:
"This will acknowledge your letter of
May 8, 1956, the first paragraph of which reads:
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'This constitutes my appeal the case of Mr. Freddie
Lewis your consideration from the decision of your Mr. P, S.
Cabal as expressed in his letter of May 1, 1958, his file number 809-557, Mr. Freddie Lewis shall be made whole.'
"Mr. P. S. Cobel's letter of May 1, 1958, to Mr. Freddie Lewis
was a notice that he had been dismissed from service following an investigation. I cannot accept your appeal of this case to me as it was
not made in accordance with Rules 24(a) and 24(b) of the current
agreement. Any appeal of notice of dismissal will first have to be
made in writing to Mr. P. S. Cobel, Supervisor, Dining Car Service,
Fort Worth, Texas before it can be appealed to me.,, Your appeal,
therefore, is not in accordance with the agreement and is not accepted nor recognized as an appeal until you have complied with the
agreement."
The claimant pursued no further course on the property but appealed directly to the Board.
The claimant contended that to appeal to the Supervisor of Dining Car
Service would be a vain act because he rendered the decision and in any event
a copy of the letter of appeal to the highest officer designated by the company
was sent to the Supervisor which satisfied Rule 24 requiring that "an employee
dissatisfied with a decision will have the right to appeal do succession up to and
including the highest officer designated by the Company, if notice of appeal is
given the officer rendering the decision within ten days thereafter." (Emphasis
added.)
The rule is well established that the Board is required to take the agreement as it is written and cannot rewrite it by interpretation nor by interpretation put in that which the patries have left out.
The jurisdiction of the Board is conferred by the Railway Labor Act, as
Amended, and must be exercised in accordance with the terms of that Act and
the agreement of the parties. We must adhere to prescribed procedure which
we believe is basic and cannot condone indiscriminate departure therefrom,
especially when objected to and recited in the handling of the question on the
property, as in this case.
We feel that the understanding of procedure on appeal under rule 24 was
clear and agreed to between the Carrier and the Organization and therefore
the contentions of the Organization are without merit.
Although we are reluctant to deprive any party to have his claim considered upon its merits, we must hold that jurisdiction of this Board has not
been properly invoked in the case.
FINDINGS: The Third Division of the Adjustment Board, after giving
the parties to this dispute due notice of hearing thereon, and upon the whole
record and all the evidence, finds and holds:
That the Carrier and the Employe involved in this dispute are respectively
Carrier and Employe within the meaning of the Railway Labor Act, as
approved June 21, 1934;
That this Division of the Adjustment Board has jurisdiction over the dispute involved herein; and
That the case should be dismissed.,
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AWARD
Case dismissed.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of THIRD DIVISION
ATTEST: A. Ivan Tummon
Executive Secretary
Dated at Chicago, Illinois, this 14th day of January, 1959.