THE DENVER AND RIO GRANDE WESTERN RAILROAD
COMPANY
The Carrier holds the provisions of Sections 1 (a) and (c) of Article V of the August 21, 1954 Agreement- which have no bearing on the case at issue - were fully complied with.
Here we have a case that is not covered by any provision of the current Maintenance of Way Agreement nor by any settlement in connection therewith, yet the Brotherhood contends that Sections 1 (a) and (c) of Article V of the August 21, 1954 Agreement requires payment of the claim. The 3rotherhood has not cited, and cannot cite, any rule of the current working .greement which has been violated. Even among men inclined to be unreasonable, it is obvious that Sections 1 (a) and 1 (c) of Article V of the August 21, 1954 agreement would have no bearing on or application to a claim not supported by any rule of the agreement. The Brotherhood has not proven and cannot prove that those signatory to the August 21, 1954 Agreement intended that Sections 1 (a) and (c) of Article V had application to any and all claims-whether they had any merit or not-although the provisions of Sections 1 (a) and (c) were complied with-simply because the replies of the various officers of the Carrier to the Brotherhood's letters in connection therewith did not suit the Organization.
The Carrier again contends your Honorable Board has no jurisdiction in this dispute. As previously stated, there is no rule in the Agreement which supports the claim of the Employes and this claim has not been pro--secuted on the basis of any rule or practice.
To sustain the claim of the Employes would be to establish a new rule which power is not vested in your Board by the Railway Labor Act.
The Carrier holds Awards 2119, 8183 and 11444 of the First Division of the National Railroad Adjustment Board, covering similar cases supports its action in the case at hand.
All data in support of Carrier's position has been presented to the Brotherhood and made a part of the particular question in dispute. The Carrier reserves the right to answer any data not heretofore presented to it.
OPINION OF BOARD: The Carrier contends that the instant claim does not come within the jurisdiction of this Board and cites Section 1(i) of The Railway Labor Act to support its position.
The word "grievance" as used in the above excerpt is assumed to have the generally accepted meaning of that term since The Railway Labor Act does not otherwise specify, limit or define its meaning.
Webster's New International Dictionary-Second Edition-Unabridged -defines the word "grievance" as follows:
Less officially, a grievance can be simply described as a real or fancied wrong.
Considering the word "grievance" in accordance with the above definitions, there can be little doubt that the present case concerns a dispute growing out of a real or fancied wrong.
The Railway Labor Act-according to Section 1(i) -definitely brings all "disputes between an employee or group of employees and a Carrier or Carriers growing out of grievances . . :' within the jurisdiction of this Board. (Emphasis supplied.)
Further indication of the Board's jurisdiction in the present case is cited in the case of the Pennsylvania Railroad Co. vs. Day, 360 U.S. 548, wherein the Court held:
The Carrier member also cited Referee Carey's recent Award No. 10119 to support Carrier's position.
In that Award, the Organization's General Chairman asked the Carrier to provide a first-aid kit and a thermo water can on all Signal Maintainers' motor cars.
There was no contractual duty or obligation on the part of the Carrier to answer the General Chairman's request, because it was not a claim or grievance.
We believe Referee Carey rightly held that "We conclude that the letter of July 23, 1956 did not constitute a claim or grievance within the meaning of Article V of the August 21, 1954 Agreement and that failure to disallow such request did not violate that Agreement."
The Carrier also contends that the Organization "has not cited, and cannot cite, any rule of the current agreement which has been violated." 10138-13 1(63
If there were no grievance, this position would be valid, but since it has been established that there is a grievance involved, it must obviously follow :hat provision of the Agreement concerning the handling and processing of grievances must necessarily be applicable.
Article V, Section 1(a) of the August 21, 1954 Agreement provides as follows:
The present grievance definitely comes within the purview of the pro-;isions, supra.
If the Carrier considered the grievance as a "fancied" but not a "real" :wrong, it was priviledged, according to the Agreement, to reject the claim within the prescribed period.
The Carrier claims that the receipt of the grievance was July 28, 1955 - rather than May 1, 1955-the date the grievance was addressed to the Carrier. The Carrier, however, has failed to prove this statement, or to disprove the dispatching date of the original claim, introduced in duplicate by the Carrier.
In the absence of such proof or reliable indications of proof-the Carrier must be considered to have violated Article V, Section 1(a) of the August 21, 1954 Agreement.
We must keep in mind that the current Agreement does not specify that all claims must be reasonable, justified or merited. It is clearly not the function of this Board to determine the claim's merits or validity. Neither is it our function to indicate the forum or area where a claim should be properly heard or processed.
Accordingly, we make no findings on the merits of this claim or determine what would have been its disposition before this Board if the Carrier had handled the claim expeditiously on the property. We must sustain the claim on the procedural grounds set forth in the Opinion.
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: 10138-14 164
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 here; and
This far-reaching award is amazing in the scope of its error. The National Railroad Adjustment Board, which has until now, concerned itself with labor disputes, is by this award made the forum for determination of Tort claims. The claim here was one for damages against the Carrier account alleged destruction and loss of the Claimant's personal property, while located in an outfit car while the Claimant was on vacation.
The Referee, who is the author of this award, completely ignored, though it was called to his attention more than once, that the word "grievance" as used in the Railway Labor Act and in the Collective Bargaining Agreement, is confined by the very name of the Railway Labor Act to Labor disputes between Employes and Carriers. Labor contracts executed under the Act can rise no higher than their source. To treat, as this Referee does, an employe's claim, such as this, against a carrier as a "grievance" does violence not only to the established concept of labor relations, but would make the Federal Employers Liability Act and State Laws drafted to cover Tort claim; idle acts on the part of the legislatures which enacted them.
This Referee imposes the Time Limit provisions of the June 21, 1954 Labor Agreement to a Tort claim for damages and tells the Carrier you didn't decline it within 60 days and therefore must pay it as presented. The statutes of limitation on this type of claim running as high as ten years in some states are nullified with one sweep of the pen and the August 21, 1954 Time Limitations of 60 days are subsituted instead; something never intended nor even imagined by the parties who agreed to Time Limitations in the handling of labor disputes on that date.
It is elemental that the determination of a Tort claim hinges on a finding of the presence or absence of negligence. This award, however, changes all that and holds the Carrier liable even though there is not one scintilla of evidence in the record on the question of negligence.
The claim against the Carrier here was for reimbursement for broken dishes and other personal property allegedly lost by the Claimant. What 10138-15 165
is next? Are we also to be the forum to determine personal injury and death claims? Apparently yes, if this Referee's thinking were to prevail for it would involve a "grievance" as he sees it.
For the foregoing reasons, we could not disagree more with the erroneous premise of this award and must therefore vigorously dissent.
ANSWER TO CARRIER'S DISSENT TO AWARD NO. 10138
DOCKET NUMBER MW-8892
The egregious error in this dissent is the complete disregard of the language and pertinent provisions of The Railway Labor Act and the controlling Collective Bargaining Agreement.
The Carrier states that the word "grievance" as used in The Railway Labor Act and in the controlling Agreement is confined to labor disputes. This is quite obviously so, but one wonders by what unilateral authority the Carrier can so-sweepingly define what is or summarily dismiss what is not -a labor dispute. The term "labor dispute" is a decidedly broad one, and it must be noted that neither The Railway Labor Act nor the controlling Agreement specifically define what constitutes a "labor dispute".
In the absence of specific definitions, the Referee fails to see any fault in the use of Webster's Dictionary definition of a "grievance" or the generally accepted version of a grievance as a real or fancied wrong.
The Railway Labor Act irrefutably supports our position. Pertinent sections of that Act read as follows:
"National Board of Adjustment
-Grievances-Interpretation of Agreements"
Article V, Section 1 (a) of the controlling Agreement supports the above position by failing to define what constitutes a claim or grievance, and in addition puts a 60-day time limit within which a Carrier must act on all claims or grievances. Article V, Section 1 (a) reads as follows:
There is no doubt that the present dispute-or claim- has grown out of an employe's grievance and; accordingly, lies within the jurisdiction of this Board.
The dissent's repetitious reference to torts, to statutes of limitation, to broken dishes and to personal property loss is perhaps intended to rationalize the Carrier's failure to follow the prescribed procedure quoted above-or may even be intended as a smoke screen to obsecure the Carrier's guilt in not complying with its contractual obligations.
Otherwise, the reference has no applicability whatsoever, because the award is not concerned with the validity of the claim-or the lack of itbut merely with the failure of one of the parties to live up to the terms of the controlling Agreement.
It is especially difficult to understand the Carrier's position in this dissent, since a Second Division Award (3637) held, without dissent, that:
The finding of Referee Watrous in the above Award that the Carrier is not vested with the right to prejudge whether an issue presented be a claim or a grievance is precisely similar to the present findings. Yet the same Carrier Member accepted the earlier Award and rejects the current one.
Such patent inconsistency cannot be explained by torts or personal property or statutes of limitation-or indeed by questioning a decision based purely and logically on the facts. Perhaps such action on the Carrier's part represents its attempt to stand firmly on quicksand.