1. Carrier violated Article V of the August 21, 1954 Agreement when it failed to allow the following claim of Agent-Telegrapher Cooper of Madison, Georgia, as presented after having been in default of the time limits:
"In order that cars for Central of Georgia Railroad at Madison can be interchanged on Saturday after the agent goes off duty, a way bill box has been installed on telegraph pole opposite switch
Carrier did not comply with 2 of that article and paid the claim accordingly. Such payment was without prejudice to carrier's position and had no bearing on subsequent claims. By time check No. 81, issued June 21, 1956, carrier disposed of claims for the dates referred to in Item 1, without prejudice to its position and any subsequent claims will have to be handled in accordance with the rules of the agreement.
In Item 2 of the claim Petitioner seems to be arguing that because of time limit violation on the listed claims carrier is obligated to pay any subsequent claims. Such is certainly not the case. Any subsequent claims go back to 1 (a) and will have to be handled accordingly.
Petitioner cannot deny the payments of the claims filed in Item 1 of the claim. As to Item 2, that claim is based on an erroneous interpretation of time limit on claims rule.
We respectfully request for the reasons contained herein that the claim be dismissed or denied.
To the extent possible data contained herein has been made available to Petitioner.
OPINION OF BOARD: The Claimant herein is claiming a violation of the Scope Rule of its Agreement with the Carrier, when the Carrier transferred certain duties which had previously been performed by the Claimant Cooper, Agent-Telegrapher at Madison, Georgia, to conductors.
This claim was filed for specific dates set forth in the claim and "or for any previous or subsequent dates that it may be developed such violation obtained."
This claim was denied in successive appeals to the Assistant Superintendent, the Superintendent and finally to Mr. Marshall L. Bowie, Director of Personnel of the Carrier, by letter dated September 23, 1955. Mr. Bowie failed to take any action relative to said claim within the sixty (60) day period prescribed by the rules and not until March 20, 1956, at which time he sent a letter denying the claim. On April 6, 1956, Mr. Bowie in a letter to the General Chairman of the Organization, admitted the time limit rule had been violated and in June 1956, mailed a voucher for payment of the claim for the specific dates set forth in the claim, without comment on the claim for continuing violations.
The Carrier has attacked the jurisdiction of this Division to consider this dispute on the basis that the requirements of the Railway Labor Act and the Rules of Procedure of the National Railroad Adjustment Board, as embodied in Circular No. 1, have not been met, in that the claim was never considered in conference between representatives designated and authorizd to confer, respectively, for the Carrier and the Organization. 10567-11 743
We feel that the Railway Labor Act and the Rules of Procedure of the National Railroad Adjustment Board give to the parties certain rights, but, by the same token, impose certain duties and obligations upon each of them. We are of the opinion that in order to assert a violation of such guaranteed right, that the party seeking such ruling must first bring itself within the statute by making a request for a conference. If a conference is requested and denied, then and only then, can such a charge of non-compliance with the Act be successfully raised.
Thus we hold that the Carrier, not having requested a conference cannot now defeat consideration of this claim.
The record shows that upon the dates set forth in the claim and thereafter upon unidentified dates and occasions, work customarily performed by AgentTelegrapher Cooper, and covered by the Telegraphers' Agreement, has been performed by conductors, not parties to such Agreement.
Inasmuch as the Carrier has paid from February 26, 1955 through July 3, 1956, we hold that the claim for subsequent violations after July 3, 1956, is a valid one and must be sustained in accordance with the applicable provisions of the Telegraphers' Agreement for such dates and occasions as such work was thus performed and the case will be remanded to the parties for determination of the necessary facts and for disposition on the property.
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
The fourth paragraph of the Opinion of Board in Award 10567 outlines the Carrier's challenge to the Board's jurisdiction to consider the claim because it was not handled in accordance with the provisions of the Railway Labor Act and the Rules of Procedure of the National Railroad Adjustment Board. 10567-12 744
The fifth paragraph of the Opinion erroneously disposes of this challenge by concluding:
"If a conference is requested and denied, then and only then, can such a charge of non-compliance with the Act be successfully raised."
The Board owes its existence to Section 3 of the Railway Labor Act. Section 3, First (i) of the Act reads in part:
The above quotation is the source of this Board's jurisdiction. It follows that unless, within the meaning of the Railway Labor Act, the parties have handled a dispute on the property in the usual manner, this Board has no jurisdiction of such dispute. As the dispute in this docket was not handled in the "usual manner" as required by the Railway Labor Act, the Board should have properly dismissed it for lack of jurisdiction.
After erroneously assuming jurisdiction, the majority commits further serious error in concluding:
"Inasmuch as the Carrier has paid from February 26, 1955 through July 3, 1956 [sic], we hold that the claim for subsequent violations after July 3, 1956 [sic], is a valid one and must be sustained in accordance with the applicable provisions of the Telegraphers' Agreement * * *."
The claim submitted to the Board was that the Carrier defaulted under the time limit rule. The violation of the time limit rule was not a continuing violation. It occurred just once and the Carrier paid for that violation. This payment by the Carrier in no manner validated claims that may have arisen subsequently.
The Award is in further error in remanding the case to the parties for determination of the necessary facts and for disposition on the property. There is no rule in the Agreement that would require the Carrier to search its records in order to make a claim or claims for the Organization. (Award 9343.) 10567-13 745
Ordinarily a dissent which basically does no more than repeat contentions that were rejected does not require an answer. Here, however, because in my opinion the rejected contentions are so fundamentally unsound and since they obviously have not been abandoned, I feel it is necessary that I record my disagreement with them.
The first contention made by the dissenters, dealing with the question of what is required by way of conferences prior to submission of a dispute to the Board, has been rejected so many times that the point ought to be considered as having been settled.
The basic fallacy in their argument is failure of the dissenters to give any value or effect to Section 2, Sixth, of the Railway Labor Act, which very clearly requires such conferences only if one party serves notice on the other of a desire to confer. In the absence of such notice, as was the case here, no conference is required, and the Award correctly so holds. If this were not so, and if the contention of the dissenters with respect to the portions of the Act they quote were sound Section 2, Sixth, would be mere surplusage. Obviously Congress had no such intent to waste words when it included this paragraph.
The second contention of the dissenters is more subtle but equally unsound. This contention embodies the view that a Carrier's liability, when it fails to comply with the time limit rule involved, may be terminated by its own act, either of recognizing the default or rendering a belated decision on the merits of the claim.
This contention, with its accompanying rationalization, has confused` some referees. A prime example is Award 10401 where, after noting that theagreement makes no provision for terminating a claim under comparable circumstances, the majority proceeded to supply what it said it thought the parties meant. No such error occurred in Award 10567.
The basic unsoundness of the dissenters' contention lies in the studied avoidance of any reference to the precise language of the rule. That language includes the following:
The underscored language, which the dissenters would modify, is not ambiguous. It does not say that the claim will be allowed up to the time the ,carrier recognizes the default or makes a decision on the merits. It unequivocally says that the claim shall be allowed "as presented".
If the parties had intended any modification or limitation they could easily have included the necessary language.
Award 10567 correctly applied the language which the parties did include in the rule. And there it stopped. The majority correctly refused to invade the field of agreement revision. It is axiomatic that this Board does not have the power to revise agreements as was attempted in Award 10401 and as the dissenters would have it attempt here.
The last contention of the dissenters is as unsound as their first two. The award does not require a search of Carrier's records "in order to make a claim or claims for the Organization". It simply requires the parties to determine the necessary facts and to dispose of the case accordingly. The claim was made in the first instance for certain dates and "for any previous or subsequent dates that it may be developed such violation obtained." The Carrier brought itself within the requirement that the claim ". . . shall be allowed as presented . . . .
as to other such violations. The method prescribed by the award, the remand for determination of the facts and disposition accordingly, is so well established by prior awards, with and without referees, that no further comment is necessary.
The dissenters are correct in noting the inadvertence with respect to the dates. Quite obviously the date shown as July 3, 1956 should be July 3, 1955.