NATIONAL RAILROAD ADJUSTMENT BOARD
Charles W. Webster, Referee
PARTIES TO DISPUTE:
AMERICAN TRAIN DISPATCHERS ASSOCIATION
CENTRAL OF GEORGIA RAILWAY COMPANY
STATEMENT OF CLAIM: Claim of the American Train Dispatchers
Association that:
(a) The Central of Georgia Railway Company hereinafter referred to as "the Carrier" violated the currently effective agreement
between the parties to the dispute, particularly Memorandum Agreeement covering sick leave, when it failed and refused to compensate
Train Dispatcher R. E. Williams in accordance with the provisions
of Sick Leave Agreement Section (a) 3, on specified dates set forth
herein, while Train Dispatcher R. E. Williams was on sick leave.
(b) Carrier shall now compensate Train Dispatcher R. E. Williams a day's pro rata rate for each of the following dates: March
11, 12, 13, 14, 15, 18, 19, 20, 21, 22, 25, 26, 27, 28, 29, April 1, 2,
3, 4, 5, 1957,-total twenty (20) days.
EMPLOYES' STATEMENT OF FACTS: There is in effect an Agreement
between the parties, effective April 1, 1938, on file with your Honorable Board
and by reference is made a part of this submission as though it were fully set
out herein.
Sick Leave Rule effective December 1, 1951 which is particularly pertinent to this instant claim is quoted here for ready reference.
"Effective December 1, 1951, the following provisions shall apply
for time off on account of sickness, without loss of pay:
"(a) 1. An employe who has been in continuous service
of this Company for one year shall be allowed ten (10)
working days per year.
2. Where service has been continuous as a train dispatcher for not less than two (2) years the employee shall be
allowed fifteen (15) working days per year.
3. Where service has been continuous as a train dispatcher for not less than three (3) years the employee shall
be allowed twenty (20) working days per year.
[131]
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147
have the effect of showing what the Parties, through the years,
have interpreted the Agreement to mean."
(4) If the Employes contend their demand is for an
extension of time
limits under the Sick Leave Rule, then their claim constitutes a request which
must have the approval of Management as specifically required in paragraph
(b) of the Sick Leave Rule. Management has not agreed to such an extension.
There is no evidence of any violation of the current agreement, and the
burden of proof is upon the petitioning Employes. The claim is not valid, and
should certainly be denied beyond any shadow of a doubt.
Carrier, not having yet seen the Employes' ex parts submission, reserves
the right, after the Employes have set forth their position to the Board, to
present such additional evidence and argument as it deems necessary.
All facts submitted in support of Carrier's position in this case have been
presented orally or by correspondence to the duly authorized representative
of Employes, and made a part of this dispute.
(Exhibits not reproduced.)
OPINION OF BOARD:
This is a claim for sick leave pay. The Carrier
has argued this case on both a procedural ground and on the merits. In light
of the record it
is
clear that the Carrier's procedural objection to the case
under consideration controls. There is thus no necessity to discuss the facts
in this case.
The record discloses the following handling of the case on the property
and the applicable provision of the Agreement.
On January 24, 1957, the parties adopted a Time Limit Rule effective
February 1, 1957, which contained in Section (c) the mandatory requirements
that,
"Decision in writing by the highest officer designated to handle
claims and grievances
shall be final and binding unless within sixty
(60) days after written notice of the decision of said officer he is
notified in writing that his decision is not accepted." (Emphasis added).
It is clear that the Carrier's highest officer designated to handle such
disputes rendered his declination of this claim in writing on August 19, 1957.
It is equally clear that the Train Dispatchers did not comply with the
Rule's mandatory requirements in that they did not notify such Carrier officer
within 60 days "after his written notice of the decision" in writing, that his
decision was not accepted-the Train Dispatchers' notice being dated January
25, 1958, or approximately 5 months after written notice of such Carrier
officer's decision.
By reason of the Train Dispatchers' non-compliance with the mandatory
requirements of Section (c) of that Time Limit Rule, the written decision of
such Carrier officer is "final and binding."
Thus the Carrier's
decision is binding and a dismissal award is in order.
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FINDINGS: The Third Division of the Adjustment Board, upon the
whole record and all the
evidence, finds and holds:
That the parties waived oral hearing;
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 claim is barred.
AWARD
Claim dismissed.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of THIRD DIVISION
ATTEST: S. H. Schulty
Executive Secretary
Dated at Chicago, Illinois, this 26th day of January 1962.