The Carrier respectfully urges that the claim should be dismissed for the reasons set forth in Part I hereof. In the alternative, it should be denied for the reasons set forth in Part II, above.
OPINION OF BOARD: On December 30, 1954, third shift operator position at El Paso, Texas, was declared abolished by the Carrier. It is the claim of the Employes, that the work of the position was not discontinued but that employes not covered by the Agreement were required to perform the work. Claim for the violation was made on March 5, 1955, in a letter from General Chairman to the Superintendent claiming that the Agreement was violated when the Carrier abolished the third trick operator at El Paso. The Superintendent declined the claim to the General Chairman in a letter dated May 9, 1955. On June 5, 1955, the General Chairman wrote the Superintendent requesting that the claim be allowed on the basis the Superintendent failed to render a decision within 60 days of presentment of the claim as required by the Time Limit Rule (Article V) of the August 21, 1954 Agreement.
In reply dated June 17, 1955, the Superintendent abvised the General Chairman that the claim was improper in the first instance inasmuch as it was for unnamed employes and was not presented within 60 days of January 1, 1955, the effective date of Article V of the August 21, 1954 Agreement.
We quote the pertinent part of Section 2 of Article V of the August 21, 1954 Agreement, which became effective on January 1, 1955:
The record shows that no claim for the abolishment of the position, which occurred on December 30, 1954, was filed prior to January 1, 1955. Under Section 2, of the August 21, 1954 Agreement, which became effective January 1, 1955 it was required that the claim be filed within 60 days after January 1, 1955.
The claim in this case was first presented on March 5, 1955 which was in excess of 60 days after January 1, 1955. There is no dispute in regard to the late filing of the claim. The Claimant contends that the Carrier failed to raise the question that the claim was not filed within the 60 days on the property and by so doing waived this defense. They cite among other Awards Award #10059, which is a case involving a three and a quarter years delay in progressing the claim.
This is a case under an Agreement that requires the filing of the claim within a specific time. There was no claim here because it was not filed within the time required and there being no claim, it was not necessary to deny same within the 60 day period. 10532---25 ;
But the claimants contend that in this case, the claim is a continuing claim and that under Section 3, such a claim may be filed at any time, the claimed reparation, however being limited to 60 days prior to the filing date.
With this we cannot agree, the act complained of was the Carrier's action in abolishing the position and transferring work to employes not covered by the Agreement. This took place on one date, to wit December 30, 1954; if there was a violation of the Agreement it took place on that day and no other.
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
Egregious error is so patently manifest here that little comment is necessary.
The action complained of was not the abolishment, per se, of the position, but the resultant, and continuing action of requiring employes not covered by the telegraphers' agreement to perform communication work which the petitioning employes believed and contended was reserved to them by the terms of their agreement.
Section 3, Article V, August 21, 1954, Agreement was plainly intended to apply to a situation such as this, the majority's unsupported disagreement notwithstanding.
Further error consists of the wholly unsupported conclusion that the fancied late filing of the claim resulted in no claim so that "it was not necessary to deny same within the 60 day period." The rule makes no such fantastic provision. It merely requires notice of disallowance-if that is the decision-with reasons, within 60 days, regardless of whether the claim is- or is finally held to be - good, bad, indifferent, proper or improper. 10532-26 3455
The holding of the majority simply and improperly provides the Carrier with a defense to which it was not entitled either in logic or under the agreement.
ANSWER TO LABOR MEMBER'S DISSENT TO
AWARD 10532-DOCKET TE-8702
The dissent here fails to recognize two basic principles correctly set forth in the Award in this case, viz: first, Article V, Section 3 (continuing violations) does not apply to a situation such as that here involved where the violation was the abolishment of a position which occurred on a specific date, Fourth Division Award 943 (Carey) where he said -
and secondly, a claim that requires a timely rejection must be one that is properly filed initially. The dissent erroneously says that timely rejection of a claim is required "whether the claim is-or is finally held to be-good, bad, indifferent, proper or improper." Awards 9684, 9250 and 8889 of this ni-ision hold directly to the contrary and properly so.