THIRD DIVISION
(Supplemental)
(1) The decisions by Supervisor of Bridges and Buildings Smith, dated July 17, 1959, by Maintenance of Way Engineer Hess, dated October 14, 1959, and by Engineer Maintenance of Way Dunn, dated January 26, 1960 in the claim in behalf of Painter Foreman John Gerk (Carrier's File 103.1-14h) were not in conformance with the requirements of Sections 1 (a) and (c) of Article V of the August 21, 1954 Agreement, and in consequence thereof;
It has been brought to my attention that Mr. John Gerk and Mr. V. Enisele painted the inside of the Indiana Harbor Belt restaurant at Blue Island, Illinois in the month of April 1959. John Gerk being a Painter Foreman and V. Enisele being a painter and holding seniority as such. However, the work was placed under the supervision of B&B foremen Blake, with John Gerk and V...Ehisele
other faciilties on the respondent Carrier's property, eliminated the necessity of maintaining a separate force of painters to perform work which was now no longer needed.
At the time of the abolishment of this paint gang Mr. Gerk was the foreman. Mr. Gerk had seniority rights both in the Carpenter and Paint class, and both the position of painter and carpenter carried the identical rate of pay. Mr. Gerk exercised his seniority rights as a carpenter in a Bridge and Building Gang under the supervision of a Bridge and Building Foreman. This Bridge and Building Gang was a Composite Gang comprised of carpenters and sheet metal workers.
The Organization's representatives protested the right of the Carrier to assign Mr. Gerk as a painter and another painter to paint the inside of the Indiana Harbor Belt Railroad restaurant at Blue Island during the days in question in April of 1959. Their position was that Mr. Gerk should have been assigned to this job as a paint foreman. The appeal was carried in successive stages to the undersigned as the highest appeals officer who denied the claim on January 26th, 1960, and after a protest by the General Chairman of the Brotherhood of Maintenance of Way Employes on the Indiana Harbor Belt Railroad that the denial was ambiguous, substantiated the denial on April 27, 1960. Copies of these denials are attached. On September 19, 1960 the Carrier was informed the dispute should be submitted to your Board.
OPINION OF BOARD: We are concerned here with the following portion of the August 21, 1954 Agreement:
Carrier's letter disallowing the claim was sent within the required 60 days. It stated:
We must here determine whether the words "your claim is without merit" meet the requirements of the August 21, 1954 Agreement that the Carrier give the Claimant "the reasons for such disallowance."
We had this same issue before us in Docket No. 15, SBA No. 287 involving the Baltimore and Ohio Railroad and the Brotherhood of Maintenance of Way Employes, with this same referee.
The language used by the Carrier in the docket before us here.- "your claim is without merit"-is less responsive to the requirements of the August 21, 1954 Agreement than was the reply of Carrier in SBA No. 287.
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
In conformity with the August 21, 1954 Agreement the claim will be allowed as presented.
The conclusion of the majority that the denial considered in this proceeding "is less responsive to the requirements of the August 21, 1954 Agreement than was the reply of Carrier in SBA No. 287" demonstrates on the part of the majority a failure to analyze the wording used.
Removing from the subject denial the words of denial (i.e., "and is accordingly denied") leaves as the reason the words "Your claim is without merit"-certainly a most appropriate "reason" for denial.
By the same process (removing the words "your claim is denied" from the denial considered by SBA No. 287), we are left with the words "As a result of this investigation."
How the majority can arrive at a conclusion that "Your claim is without merit" is not a reason escapes us. More important, how experienced minds can, conclude that "As a result of this investigation" is more responsive to the Agreement than in "Your claim is without merit" and then use this reasoning as a basis for sustaining the claim confounds us.