NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
William H. Coburn, Referee
PARTIES TO DISPUTE:
ELIZABETH E. NICHOLSON
ERIE-LACKAWANNA RAILROAD COMPANY
STATEMENT OF CLAIM:
Claim of the Petitioner, Elizabeth E. Nicholson,that:
(a) In December 1957 the Carrier violated the Collective
Bargaining Agreement between the Erie Railroad Company and
the Clerical, Office, Station and Storehouse Employes, represented
by the Brotherhood of Railway Workers, in that it appointed
another clerk, with considerably less seniority than Petitioner's to
the position of Chief Clerk. Petitioner was qualified for such
position. This was not only a breach but discriminatory by the
Carrier.
(b) That Carrier abolished Petitioner's job as Clerk in December 1958 and pursuant to the terms of the existing Collective
Bargaining Agreement Petitioner served notice that she was exercising her privilege of displacing the Chief Clerk, which she was
entitled to do by reason of her seniority over the Chief Clerk.
The Carrier refused to assign to her the position of Chief Clerk.
This was not only a breach but discriminatory by the Carrier.
(c) That Petitioner is entitled to the difference in pay in
her job as Clerk and the earnings of Chief Clerk from December
19, 1957, to December 5, 1958, plus loss of wages as chief clerk
from December 5, 1958, and so long as such violation by the Carrier
continues.
OPINION OF BOARD:
As to claim (a) the record shows that the
position of Chief Clerk in the Office of Division Car Foreman at Jersey City,
New Jersey was advertised for applications on December 19th, 1957. Petitioner made application for the position but it was not awarded to her as
Carrier considered her lacking in fitness and ability. Thereafter a claim was
filed in her behalf by the Brotherhood of Railway and Steamship Clerks and
denied by Carrier. Claim was thereafter appealed to Carrier's highest officer
designated for handling of such matters on February 24th, 1958 and denied
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by him on April 1st, 1958. The initial claim, the denial thereof, the appeal
and denial on appeal were timely filed in accord with Paragraphs (a) and
(b) of Rule 41 of the effective Agreement.
As to claim (b) the record shows that on December 3rd, 1958 Petitioner
was duly notified that her position of Clerk was to be abolished effective
December 5th, 1958. On December 4th, 1958 Petitioner informed Carrier
that she desired to exercise her seniority rights and displace the incumbent
of the position of Chief Clerk. Her request was denied by the Carrier on the
basis that she was not qualified. Petitioner addressed letters to the Carrier's
President on December 1, 4 and 9, 1958 and to Carrier's highest designated
officer for handling of such matters on December 17th, 1958. That officer
responded to all of Petitioner's communications on December 23rd, 1958
and reaffirmed prior decisions as to Petitioner lacking the necessary qualifications for the position of Chief Clerk.
On December 13th, 1963 Petitioner instituted proceedings appealing
the claim to this Board-this being more than sixty-seven months after the
denial of claim (a) on April 1st, 1958 and more than fifty-nine months after
the denial of claim (b) on December 23rd, 1958. Paragraph (c) of Rule
41 of the effective Agreement provides:
"(c) The requirements outlined in Paragraphs (a) and (b),
pertaining to appeal by the employe and decision by the Carrier,
shall govern in appeals taken to each succeeding officer, except
in cases of appeal from the decision of the highest officer designated
by the Carrier to handle such disputes. All claims or grievances
involved in a decision by the highest designated officer shall be
barred unless within 9 months from the date of said Officer's decision proceedings are instituted by the employe or his duly authorized representative before the appropriate division of the National
Railroad Adjustment Board or a system, group or regional board
of adjustment that has been agreed to by the parties hereto as
provided in Section 3, Second of the Railway Labor Act. It is
understood, however, that the parties may by agreement in any
particular case extend the 9 months period herein referred to."
The record contains no evidence that the parties agreed to an extension of the time limits stated in Paragraph (c) of Rule 41. Since proceedings
were not instituted within 9 months from the date of decision by Carrier's
highest designated officer to handle such disputes the claims are barred.
Petitioner contends that complaint was filed with this Board in August
1960. Petitioner further contends that the attempted filing in August 1960
was a valid filing within time. The final decision of Carrier in claim (a)
was made on April 1, 1958, and in claim (b) was made on December 23,
1958. The attempted filing in August 1960 was more than 28 months after
the final decision in claim (a) and more than 19 months after the final decision in claim (b).
In view of the foregoing the Board may not properly proceed to a
consideration of the merits of this claim. It will be dismissed for failure to
comply with the time limit requirements of Paragraph (c) of Rule 41 of
the Agreement.
FINDINGS: The Third Division of the Adjustment Board, upon the
whole record and all the evidence, finds and holds:
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That the parties waived oral hearing;
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
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 14th day of September 1964.