recognized as belonging to and coming under the jurisdiction of the Maintenance of Way Department." (See Rule 1.)
As your Board recognized in Award 7050, the "ordinary, common understanding" with respect to the installation of crossing planks is that such work, which is in fact a part of track work, properly falls within the category of duties to be performed by employes in the Road Track Department.
It is the position of Carrier that the work here involved does not belong exclusively to Bridge and Building Department employes as contended by the Employes, and since it has been shown that track forces have always performed this work with no determined effort on the part of the Organization to change the practice until this case (and the other four cases resting on it) arose, the practice which has heretofore obtained should be controlling. See Awards 3727, 4922, 4559.
Furthermore, there is no rule in the governing agreement to support the Employes' contention and claim. Therefore, as your Board ruled in Award 7050, the Employes' claim in this case should likewise be denied.
The substance of matters contained herein has been the subject of discussion in conference and/or correspondence between the parties.
OPINION OF BOARD: It is not disputed that the Carrier declined the claim and provided Claimant with its decision in writing with an explanation of the reasons for the denial at all levels but the last before appeal to this Board. At that stage the claim was declined in writing the day after the conference on it, but without including a statement in writing of the reasons for the declination.
This lapse is claimed to be such a violation of Article V 1(a) of the National Agreement of August 21, 1954 as to warrant sustaining the underlying claim without regard to its merits.
Article V 1(a), the well-known time limit rule, requires that claims be processed in the specified manner on the Carriers' properties and includes a requirement for written disallowance of claims accompanied by a written statement of the "reasons for disallowance."
Carrier has argued, inter alia, that the Claimant and Organization are without standing to assert the violation of Article V 1(a) because they failed to abide by the requirement of Article V 1(b) to notify the Carrier representatives who disallowed the claim "in writing . . . of the rejection of his decision."
This contention was perhaps put into issue in the Carrier's Ex Parte Statement; but the ground was not very clearly stated at that point.
The Organization responded in its Oral Argument that the Carrier's contention that the Claimant had not acted in accordance with Article V 1(b) was not specific and no such showing could be made. 9554-16 211
Thereafter the Carrier did not press the Article V 1(b) objection; throughout the docket it sought a determination on the merits of the underlying dispute.
On panel argument, the Carrier brief contended that the record showed that the Claimant and Organization had failed to make the rejections in writing required by Article V 1(b), citing the exchange of correspondence in the record. That correspondence consists of the claim letters, disallowance letters and appeals. There are no copies of letters of rejection of the disallowances.
The Employes' brief on panel argument stressed the alleged violation of Article V 1(a) and commented on Article V 1(b) in regard to the last round of correspondence only and on a point different from the one now discussed.
After the panel argument and consideration of the briefs the referee had the impression that the Carrier's contention that there had been a failure to file letters of rejection was supported by the record and not seriously denied by the Organization.
A draft Award based upon this view was circulated; the Organization requested reargument. On reargument the Organization strenuously contended that the absence of rejection letters from the record is not proof that they were not filed. The Carrier's specific allegation of the failure to file was denied and an offer was made of letters rejecting the disallowance rulings. We do not base any conclusions upon the offered proof.
After reargument, we are persuaded that the absence of rejection letters is not proof of their non-existence. The Organization asserted the violation of Article V 1(a). The Carrier asserted by way of defense that the Claimant and the Organization failed to fulfill the conditions (timely letters of rejection of disallowance rulings) of Article V 1(b). Originally the referee had the impression that the Employes did not seriously contest this allegation that the rejection letters were not written. The reargument makes it clear that the Employes emphatically deny the accuracy of the asserted defense.
In this posture it becomes incumbent upon the Carrier to provide record evidence that letters rejecting the disallowance rulings were not filed. The record contains no such evidence. The mere absence of such letters is not the equivalent of proof of the defense.
The question remaining is whether the failure to include a statement of reasons for disallowance in a timely letter disallowing the claim is such a violation of Article V, Section 1(a) and (c) as to warrant sustaining the underlying claim without a consideration of its merits.
In this case it is clear that the required notices and reasons were given at all but one stage of the grievance procedure. Were this an original proposition we would hold that there had been substantial compliance with the rule which served the purposes for which it was drafted.
However, this is not an original proposition before this Division. In cases we find indistinguishable in principle sustaining awards were made. Award 9205 (Stone) and Award 9253 (Weston); semblo Award 9492 (Rose).
In sustaining the claim we wish to make it clear that we have not considered it on its merits. 9554-17 212