THIRD DIVISION
(Supplemental)
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood that:
EMPLOYES' STATEMENT OF FACTS: On June 3, 1955, the usual and customary work of a Roadway Machine Operator was assigned to and performed by Track Supervisor F. T. Berta.
Specifically, the work consisted of the operation of a Kershaw Ballast Regulator while in movement from Walker to Joliet and from Joliet to Chicago Heights. The Track Supervisor consumed a total of eight hours in the performance of the aforementioned work.
The claimant, Mr. A. J. Delgado, who was regularly assigned to the position of Roadway Machine Operator, was available, fully qualified and could have performed the above referred to Roadway Machine Operator's work.
The Agreement violation was protested and the instant claim filed as follows:
2. That Mr. Woods' letter of September 8, 1955, did not constitute an appeal of the Carrier's decision relative to the Claimant's letter of June 3, 1955, and the failure to make a proper appeal within the time limit now bars the claim for further consideration.
In view of the foregoing, the Carrier asks that this claim be dismissed in its entirety.
All material data included herein have been discussed with the Organization either in conference or in correspondence.
OPINION OF THE BOARD: In June, 1955 Claimant A. J. Delgado was assigned as a temporary Roadway Machine Operator in the Maintenance of Way Department. On June 3 Track Supervisor F. T. Berta, whose job is not covered by the Agreement, operated a Kershaw Ballast Regulator for eight hours. (Delgado was working at the time.)
On the same day, June 3, Delgado submitted this letter to Roadmaster H. W. Lane:
Lane also told Delgado that his monetary claim was improper and should be denied under the second paragraph of Rule 62 ("Time claims shall be confined to the actual pecuniary loss resulting from the alleged violation"). Since Delgado had been fully employed throughout the period preceding his June 3 letter, Lane held, the employe did not suffer any monetary loss. 10392--31 155
On September 8 D. L. Woods, B. M. W.'s General Chairman, wrote Chief Engineer S. H. Shepley requesting that Delgado's claim be allowed since Rule 62 was no longer in effect. A copy of Wood's letter was sent to Roadmaster Lane to "Confirm Mr. Nordstrom letter to him that his decision is rejected."
Shepley replied on October 31, In rejecting Wood's request he stated, in substance: (1) Delgado's June 3 letter did not constitute a time claim since it failed to specify the time of the alleged violation; (2) Delgado failed to comply with 60 day filing requirement; (3) Wood's September 8 letter did not constitute an "appeal" within the meaning of Article V, Section 1(b) of the 1954 Agreement; (5) Rule 62, in any event, barred a claim by Delgado.
On December 22 General Chairman Woods rejected Shepley's decision and appealed the matter to Assistant Vice President R. T. Brasel. On February 23, 1956 this appeal was denied.
There is a basic procedural defect in this case, in our judgment Delgado, in his original complaint, failed to mention the day or date on which the alleged infraction occurred. While one might expect Management to have been aware of this date, the evidence shows that on July 14, 1955 it raised the question and, in effect, invited Delgado to re-submit his claim with greater specificity. This he failed to do.
By August 3, 1955-60 days from the date of the occurrence-no claim was submitted setting forth the facts and allegations in sufficient detail for Management to make an intelligent effort at settlement or resolution. Article V, Section 1(a) provides in relevant part:
There is no explanation of why Delgado did not respond to Management's July 14 prompting. Nor was the defect in filing corrected by later actions since no date was specified in any of the Brotherhood's subsequent appeals. (On September 8, the General Chairman referred only to Management's Rule 62 argument; on December 22 be again mentioned Rule 62 as well as another Managements argument regarding appeals.) Not until October 29, 1956 did the B. M. W. signify that June 3, 1955 was the critical date-this in its letter to the N. R. A. B.
Had the original omission been overlooked by Management, or had the question not been raised in a timely manner, or were we to believe that the missing information was trivial and unimportant, we might be warranted in setting aside the procedural objection. But, under all the circumstances present here, such action is not justified.
The Brotherhood argues that no weight should be accorded this argument since, on prior occasions, the Carrier has made no objection to the validity of claims which omitted the date of alleged violations. Of course, the Carrier may waive its right to protest a procedural defect whenever it desires. But that does not deprive it of the right to ever again raise the question in another case. Moreover, we note (1) Only one instance was mentioned by the Brotherhood, and (2) That arose in 1953, prior to negotiation of Article V.