he was titleholder at Hobart, it will be apparent that he lost nothing by reason ,of the handling complained of and the claim in his behalf should, like the penalty claims in Awards Nos. 6701 and 7309 be denied.
In conclusion the Carrier respectfully asserts that the Employes' claim in the instant dispute is wholly without support under the agreement rules and should for the reasons expressed herein, be either dismissed or denied in its entirety.
The Carrier is uninformed as to the arguments the Brotherhood will advance in their ex parte submission, and accordingly reserves the right to submit such additional facts evidence and argument as it may conclude are necessary in reply to the Brotherhood's ex parte submission or any subsequent oral argument or briefs presented by the Brotherhood in this dispute.
All that is contained herein has been both available and known to the Employes or their representatives.
OPINION OF BOARD: At the outset it is urged that this Board has no jurisdiction over the instant dispute since there was no timely appeal to the succeeding officer from the Superintendent's notice of disallowance. Article V procedures were not followed, it is argued, and therefore there was no compliance with provisions of Section 3, First (i) of the Railway Labor Act. The relevant facts are as follows:
1. On July 28, 1955 E. B. Elledge submitted to Superintendent A. K. Johnson "copies of time slips filed account used at Wingfoot station . . . off my regular assigned position at Hobart Yard . . .
2. On August 1, 1955 Superintendent Johnson declined Elledge's claims for wages and other expenses.
3. On September 10, 1955 Local Chairman H. J. Heaney wrote the Superintendent with reference to Elledge's claim. After reviewing the facts and arguing the applicability of various contract clauses Heaney concluded, "Please advise whether or not you are now agreeable to making payment for time and expenses claimed."
4. On September 16, 1955 Superintendent Johnson responded, stating "I have yours of September 10th, submitting claim in behalf of E. B. Elledge, alleging violation of Agreement when he was used off his assigned position beginning July 19 1955." After answering the Local Chairman's contentions, Superintendent Johnson wrote "Under the circumstances, I do not consider the schedule has been violated and the claim is declined."
5. On October 4, 1955 General Chairman J. F. Anderson submitted a written appeal to General Manager R. D. Shelton. Ile referred to and attached a copy of the claim filed by Local Chairman Heaney on September 10. He stated "Mr. Johnson, in his letter September 16 declined the claim; we therefore appeal to you with the request that you let us have your decision as early as convenient." (On October 11 receipt was acknowledged by Shelton who said he would write further after reviewing the facts.)
6. On November 21, 1955 General Manager Shelton sustained the Superintendent's decision (in response to the General Chairman's October 4 appeal). This letter, apparently, was never received and, on January 9, 1956, Anderson wrote Shelton that since the 60-day time limit had long passed he assumed 11591-39 39
the claim would be paid. On January 17 Shelton replied that he had written on November 21 and enclosed a copy of that communication.
7. On January 30, 1956 General Chairman Anderson appealed to L. D. Comer, Carrier's Assistant to Vice President, referring at the outset to the Local Chairman's September 10, 1955 "claim letter", a copy of which he enclosed.
8. On March 23, 1956 Comer requested a 30 day extension of time in which to render his decision. This was granted.
9. On April 9, 1956 Comer rejected the Organization's appeal on the merits but, additionally, raised an Article V, Section 1-a objection. The Assistant to Vice President wrote:
10. On April 16, 1956 General Chairman Anderson replied, noting in part that "I filed no claim with the General Manager whatsoever -I appealed the claim letter that was filed by Local Chairman Heaney and gave an explana tion as to our position with reference to that claim letter . . ."
11. On April 19, 1956 Comer responded, directing Anderson's attentiorr to the differences between his appeals and the Local Chairman's September 10, 1955 claim which Comer quoted.
Thereafter, on December 21, 1956, the Organization submitted a claim on Elledge's behalf to this Board. Carrier's Ex Parts submission was tendered on April 16, 1957; its Hearing Statement was submitted on February 11, 1958;: and its Reply to Employes' Hearing Statement was sent on April 14, 1958.
Was there a failure to comply with Article V? This rule provides_ in relevant part, that
It is now argued that the claim, in this case, was submitted on July 28, 1955 (by Elledge) and denied by the Superintendent on August 1, 1955. Since appeal was not taken until October 4, 1955 the 60-day time limitation was exceeded. 11591- a0 40
This argument in our opinion, is not persuasive. It is clear that the parties themselves, while handling this case on the property and in their submissions to this Board, did not treat Elledge's July 28, 1955 letter and request for payments of various kinds as the Article V claim. While it is true that Carrier is not obligated to decline the same claim twice, there is no evidence here that Carrier ever considered Local Chairman Heaney's September 10, 1955 letter not to constitute the claim before it. This question could have been raised in September by Superintendent Johnson. Instead, he replied to the Organization's September 10th claim. On November 21, 1955 General Manager Shelton, in his denial letter, made no reference to a time lapse based on Article V. Carrier's highest appeal officer, in denying the appeal on April 9, 1956, did not raise this question although, significantly, he was then concerned with Article V (in a different respect, of course). Again, on April 19, 1956, when this appeals officer discussed Article V at great length (in a two-page single-spaced letter) he made no mention of a 60-day time limit lapse. Moreover, he referred specifically to "the claim initially submitted by the Local Chairman."
We also note that in none of its submissions to this Board (which totaled 51 single-spaced pages) did the Carrier suggest that the claim to be determined here was other than Local Chairman Heaney's September 10, 1955 claim.
Under all these circumstances it would be highly improper for the Board, under its own motion so to speak, to tell the parties they were mistaken in their mutual acceptance of September 10, 1955 as the date of claim. What considerations impelled them to recognize this as the controlling date we cannot say but, surely, it is much too late to open that question now.
We turn, then, to Item 1 of the Organization's claim. Did Carrier violate the Agreement between the parties when it failed to place Elledge on his regularly assigned position at Hobart beginning July 20, 1955? Did it refuse to compensate him properly thereafter as provided by the Agreement?
On this day-the end of XX, 11-a's 90-day period -Elledge was assigned (from the extra list) to a temporary vacancy on a Telegrapher-Clerk position at Wingfoot, California. Since it was unable to obtain a replacement from the extra list, Carrier says, it kept Elledge on the Wingfoot job through July 28. He started his permanent Hobart assignment on July 30.
Elledge's situation, then, came under the second sentence of 12-a which, in turn, invokes the provisions of 11-a cited above. The question now, simply, is this: does the second sentence of 11-a permit Carrier to delay placement beyond 90 days under the circumstances of this case?
It seems apparent, particularly from the use of the phrase "be permitted" in this sentence (and a similar phrase-"inay only assume the position"in the previous sentence) that 11-a holds the successful applicant for a permanent assignment from his job not because Carrier is unable, normally, to fill vacancies (Section 6-a gives it only 30 days) but because the individual has actually been successful, within a relatively short period, in obtaining two different positions. Under such circumstances, 11-a says in effect, the employe must go through a longer waiting period.
It should also be noted that the employe is to remain on the extra list "pending . . completion of" the 90-day period. According to Webster's New College Dictionary, "pending" means "during; through the continuance of; until." The same authority defines "until" as "up to the time of." These are rather precise concepts and, in our estimation, do provide grounds for concluding that the time period in 11-a is specific, contrary to Carrier's assertion. "Pending the completion of" 90 days, in other words, means until the end of 90 days-no more. (Emphasis ours.)
Furthermore, there is no reason to suppose that the parties intended an additional 30-day period to be imposed. Had they so intended, it would have been quite simple to refer-in the second sentence of 11-a or in the second sentence of 12-a to 6-a (the 30 day clause). Instead, the only reference is to the first sentence of 11-a which, as already noted, mentions only 90 days.
In light of the above analysis we find that Management violated the Agreement when it failed to place Elledge on his Hobart position starting July 20, 1955. What, then, should be the remedy?
There seems to be little doubt that the Organization's General Chairman, in his January 30, 1956 appeal to Carrier's Assistant to Vice President, expanded on the original monetary claim. We shall disregard such additional claims and limit our consideration to the claims made by Local Chairman Heaney which were duly processed through all stages of the grievance procedure. Heaney's September 10, 1955 letter, in effect, incorporated Elledge's own computations which, in substance, reflected the grievant's request that he be compensated in accordance with X, 2-a.
It is true, as Management points out, that XX, 11-a contains no specific penalty provision. This does not mean, however, that a violation should go unremedied, particularly where financial loss is involved.
What should be done in Elledge's case? Had he been transferred on July 20, 1955 he would have earned a higher hourly rate, he would not have incurred certain expenses, he would have worked (or been idle) on different days. 11591-43 43
When he was required to remain in the Needles job he was in much the same position as the employe who, under XX, 6-a, is denied placement within the specified time. It is not necessary to read 6-a into 11-a in order to conclude that 6-a, and hence X, 2-a, contain the types of remedies which are appropriate in this case and which are not punitive. In brief, they entail the following:
"The employe will be paid not less than a minimum day of eight (8) hours for each day he is assigned to work on his assigned position.
If the employe is required to perform work on the rest day of his own regular assignment, he shall be paid therefor at time and one-half rate.
The parts of the Organization's claim which would produce results in excess of those called for under the above formula, are denied. An actual listing of the hours due, based on the facts in the record, is set forth below in the Findings.
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