NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Howard A. Johnson, Referee
PARTIES TO DISPUTE:
BROTHERHOOD OF RAILWAY AND STEAMSHIP CLERKS,
FREIGHT HANDLERS, EXPRESS AND STATION EMPLOYES
FLORIDA EAST COAST RAILWAY COMPANY
STATEMENT OF CLAIM:
Claim of the System Committee of the
Brotherhood that:
(1) The Carrier violated provisions of the current agreement,
as hereinafter stipulated, when on February 1, 1955 a position of
Key Punch Operator was transferred from Auditor of Disbursements' Office to office of Auditor of Freight Accounts and required
to perform higher rated work at lower rate of pay, and when on
March 15, 1955, two positions of Payroll Clerk were abolished in
office of Auditor of Disbursements and the work of these positions
transferred to machine operation in the office of Auditor of Freight
Accounts, in another seniority district, and
(2) That the work shall now be restored to the seniority district from which transferred and that Clerks Clyde C. Hoey Lu-,
cille B. Gilmore, and their successors, be compensated for all wage
losses resulting from improper abolition of their positions as Payroll Clerks and transfer of their work to lower rated position in
another seniority district, and that Clerk J. D. Hardee, and/or his
successors, be paid the difference between the rate of $15.54 per
day and $13.27 per day for performing higher rated payroll work,
retroactive for a period of sixty days from October 10, 1955, and
until correction is made, and that position of Key Punch Operator
be returned to its original seniority district.
OPINION OF BOARD:
This claim was originally advanced on April
14, 1955 denied by the Auditor of Disbursements on May 2, 1955, and appealed on July 25, 1955 to the Chief Accounting Officer, who ruled on August
2, 1955 that the matter was closed under Article V of the National Agreement of August 21, 1954 because not appealed within the sixty day period
therein specified.
No further action was taken on that proceeding, but on October 10, 1955
the District Chairman filed this claim which is identical except that retroactive payment is claimed for only the preceding sixty days.
[6531
9447-2
654
The Employes' Position is that the
refiling, thus limited, is authorized by
Section 3 of Article V of the National Agreement of August 21, 1954.
The material provisions of that National Agreement are as follows:
"1. All claims or grievances arising on or after January 1,
1955 shall be handled as follows:
"(a) All claims or grievances must be presented in writing
by or on behalf of the employe involved, to the officer of the
Carrier authorized to receive same, 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 employe 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 contention of the Carrier as to other
similar claims or grievances.
"(b) 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, and the representative of
the Carrier shall be notified in writing within that time of the rejection of his decision. 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 employes as to
other similar claims or grievances. *
"(c) The requirements outlined in paragraphs (a) and (b),
pertaining to appeal by the employes and decision by the Carrier,
shall govern in appeals taken to each succeeding officer, except in
cases of appeal from the decision of the highest officer designated
by the Carrier to handle such disputes.
"3. A claim may be filed at any time for an alleged continuing violation of any agreement and all rights of the claimant or
claimants involved thereby shall, under this rule be fully protected
by the filing of one claim or grievance based thereon as long as such
alleged violation, if found to be such, continues. However, no monetary claim shall be allowed retroactively for more than 60 days
prior to the filing thereof." * *
The question presented is whether the filing of claims for continuous
violations as authorized by Section 3 includes the refiling of claims which
have been denied but not appealed within sixty days, and therefore under
Section 1 (b) "shall be considered closed".
That the refiling of such claims was not within the contemplation of the
parties is indicated by the absence of express reference, as well as by their
obvious intention to provide for the prompt disposition of claims and grievances. The adoption of Section 3 indicates that for the purpose of the
original filing of claims continuing violations were considered in a different category from violations not continuing, perhaps because they might affect successive claimants;-that claims for ordinary violations should therefore be
filed within sixty days, but that claims for continuing ones could be filed at
any time, though with financial retroactivity limited to sixty days to discourage intentional or undue delays.
9447-3
655
There is no indication that their differences were considered such as to
warrant the refiling of claims already closed by failure to observe time limits,
or to warrant repeated filings; in fact, the contrary is suggested by the provision that the rights of all claimants should be fully protected by the filing
of one claim as long as the violation continues, thus again evidencing the
desire for prompt and final disposition of claims and grievances.
The above considerations are not conclusive, but our disposition of this
claim is dictated by the well settled rules of construction of contracts that
each provision is to be given effect, and that as to an ambiguous or doubtful
provision a construction must if possible be adopted which is consistent with
the rest of the agreement.
As noted above, Section 1 (b) of the National Agreement provides that
upon a failure to take an appeal within the prescribed sixty day period "the
matter shall be considered closed, * * * " Under the accepted rules we cannot reasonably adopt a construction of Section 3 which would limit the effect
of Section 1 to grievances which do not continue, so that continuing ones are
open to refiling, either once or repeatedly. Any doubt in that regard seems
further concluded by the additional provision of Section 1 (b) that "this
shall not be considered as a precedent or waiver of the contentions of the
employes as to other shuilar claims or grievances". (Emphasis added.) The
express provision that other similar claims and grievances are not concluded
by failure to appeal the current one certainly emphasizes the fact that the
current claim or grievance is definitely and finally disposed of.
This claim is not properly before the Board, due to failure of the Organization to comply with the National Agreement of August 21, 1954, in
that proper appeal on the property was not made within sixty days as required by Article V, Section 1 (b). The provisions of that Agreement are
mandatory. (Awards 8383, 8564, 8886, 9189.) The Board is without
authority to make an award on the merits.
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 Employes involved in this dispute are respectively Carrier and Employes 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 Board has no authority to consider this claim on the merits,
and must therefore dismiss the claim.
AWARD
Claim dismissed.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of THIRD DIVISION
ATTEST: S. H. Schulty
Executive Secretary
Dated at Chicago, Illinois this 25th day of
May, 1960.
9447-4
656
DISSENT TO
AWARD NO. 9447, DOCKET NO. CL-9000
This Award is erroneous. The majority have completely ignored the
clear and unambiguous language of Section 3 of Article V of the National
Agreement of August 21, 1954. This provision is a modification of the requirements of other provisions of the Article. There is nothing therein that
prevents the refiling of claims for a "continuing violation" of an agreement,
contrary to the contention of the majority.
Section 3 is a "saving clause", or special provision that prevails over the
general terms of Section 1 (b), which is clear from that latter's language
reading:
"* * *, but
this shall not be considered a precedent or waiver of
the contentions of the employes as to other similar claims or grievances."
The majority have exceeded their authority by adding an exception to
Section 3 that was never intended by the parties to the agreement.
The Award is patently wrong and erroneous, for that reason I dissent.
/s/ J. B. Haines
Labor Member
REPLY TO DISSENT TO AWARD NO. 9447, DOCKET NO.
CL-9000
We concur in Award 9447. It properly construes Article V as against
the facts in the case and the Labor Member's Dissent takes nothing away
from the Award.
Article V does not permit of the refiling of claims already closed by
failure to observe time limits. Once a claim for an alleged continuing violation, or otherwise, is timely filed, it must be handled in accordance with Section 1 of Article V which expressly applies to "All claims or grievances".
When, as in this case, there was a failure to effect an appeal within sixty
(60) days from receipt of notice of disallowance, Section 1 (b) states that
"the matter shall be considered closed" but "shall not be considered as a
precedent or waiver of the contentions of the employes as to other similar
claims or grievances." There is no mystery in this languge and it is pure
fiction to attempt to construe the attempted refiling of a claim as some "other
similar claim or grievance" when, in fact, it was the identical matter which,
by operation of Section 1 (b), had become closed. (Emphasis ours)
/s/ C. P. Dugan
/s/ R. A. Carroll
/s/ W. H. Castle
/s/ J. E. Kemp
/s/ J. F. Mullen