ILLINOIS CENTRAL RAILROAD COMPANY

STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood (G'L-5370) that:

(a) Carrier violated Article V of the Agreement dated Chicago, August 21, 19'54 when its Division Superintendent Mr. H. R. Koonce, Carbondale, Illinois, failed to render decision within the sixty (60) day time limit period in claim filed in behalf of Clerk R. L. Jones, Bluford, Illinois.

(b) R. L. Jones be compensated a day's pay at pro rata rate attaching Position No. 246 ($19.16 per day) for each work day Wednesday through Sunday beginning March 2, 1962, until he is restored to Position No. 246.

EMPLOYES' STATEMENT OF FACTS: Clerk C. T. Baker, Bluford, Illinois, who for several months had been on leave of absence, returned to active service and displaced R. L. Jones effective March 2, 1962.

March 4, 1962, R. L. Jones filed claim with Train Master R. L. Warren for a day's pay at the rate attaching Position No. 246 for each day Wednesday through Sunday account being illegally displaced by C. T. Baker in accordance with Rules Nos. 16 and 27. (See Employes' Exhibit No. 1-A.)

March 14, 1962, Train Master Warren denied claim upon the premise Jones' displacement by Baker was proper and in accordance with Baker's seniority rights. (See Employes' Exhibit No. 1-B.)

April 9, 1963, District Chairman H. S. Brewer advised Train Master Warren that his decision on the dispute was unsatisfactory and his decision would be appealed. (See Employes' Exhibit No. 1-C.)

April 9, 1962, District Chairman Brewer appealed the claim to Superintendent H. R. Koonce alleging that Baker's authorized leave of absence had expired January 10, 1962 and his belated displacement of 'Claimant Jones on March 2, 1962, was violative of Rule No. 27 as Baker had overstayed his leave of absence. (See Employes' Exhibit No. 2-A.)

but the division chairman-who had full knowledge of our understanding-nevertheless appealed the instant claim based on the the contention that Baker lost his seniority. The division chairman did not have the right to appeal the claim under the circumstances, and the superintendent was not, in our opinion, obligated to respond to the appeal within 60 days since the claim was based on a misstatement of the facts.

The agreement, moreover, providing for the filing of one claim to cover an alleged continuing violation reads:

`A claim may be filed at any time for an alleged continuing violation of any agreement and all rights of the claimant or claimants involved thereby shall, under this rule, be fully protected by the filing of one claim or grievance based thereon as long as such alleged violation, if found to be such, continues . . . .' (Emphasis ours.)

The facts upon which this claim was premised-that Mr. Baker forfeited his seniority-were, as you admit, erroneous. The claimant, therefore, had no rights to protect and the claim certainly was not found to be based on a continuing violation. The claim was instead based on erroneous facts, and the fact that the claim was not declined within 60 days did not operate to change the facts.

We feel, in short, that an employe must make out a prima facie claim before the 60-day time limit rule begins to operate. He cannot file a claim based on erroneous facts, as here, and expect those facts to materialize if the claim is not declined within 60 days. If the contrary were true, all the results of the collective bargaining procedure could be set aside by the company's failure to decline claims such as this one within 60 days.

It is our position that Baker's right to return to his position was conclusively determined by our joint action, and that the division chairman had no right or authority to attempt to defeat it by handling a time claim in direct opposition thereto. There is no basis for allowing the claim, and vie have no alternative but to reaffirm our previous declination.

The agreement between the parties, effective June 23, 1922, as revised, is by reference made a part of this submission.

(Exhibits not reproduced.)

OPINION OF BOARD: The issue is rather simple. It is agreed that the Carrier failed to respond to the District Chairman's letter within sixty (60) days as required in Article V of the August 21, 1954 Agreement. Carrier denies that said Article V was violated because (1) the precise issue was adjusted by agreement of the parties and (2) the "District Chairman was estopped from handling a duplicate claim . . :'

The claim was filed with the Trainmaster on March 4, 1962, who declined it on March 14, 1962. An appeal was taken to the Superintendent on. April 9 1962, who failed to respond within the required sixty (60) days. On June 12, 1962, the District Chairman wrote the Superintendent calling his. attention to the fact that the Carrier had failed to comply with Article V of the August 21, 1954 Agreement. The Superintendent wrote the District Chairman on July 5, 1962, in part, as follows:

"The matter of Clerk C. T. Baker's leave of absence has been handled continuously by your General Chairman and the Manager of Personnel, starting with the General Chairman's letter dated April 19, 1961, and ending with the Manager of Personnel's letter dated June 12, 1962, as well as during two conference discussions . . ."

"Since, through the negotiations between the General Chairman and Manager of Personnel, Clerk Baker did not frofeit his seniority as you contend, there was never a violation of the schedule agreement when he returned to service on March 2, 1962, and the alleged claim filed on the premise that he (Baker) had forfeited his seniority has never had a valid standing and did not constitute a claim within the meaning of Article V of the August 21, 1954 Agreement, and the failure to disallow such alleged claim did not violate that agreement."

It should be noted that if the identical claim had been resolved by the parties such an agreement was not consummated until the Manager of Personnel's letter dated June 12, 1962, which was sixty four (64) days after the claim was appealed to the Superintendent.

But the identical claim was not resolved by the parties. Carrier relies on a letter dated February 12, 1962, from the General Chairman to Carrier's Manager of Personnel which, in part, reads:

"Mr. Baker is regularly assigned to a position at Bluford and I suggest you instruct the division officers to advise him that he should protect his assignment under the same conditions applicable to other employes at Bluford or be subject to disciplinary action.

Please keep me advised of the action you take in resolution of this complaint."

Carrier notified Mr. Baker and on March 2, 1962, he displaced the Claimant. Again, it should be noted that all of this took place before the claim was filed. And the General Chairman's letter of February 12, 1962 is not an agreement that Baker had the right to displace the Claimant. Whether he did or not was a question of fact that could have been determined if 'Carrier had replied to the April 9, 1962 appeal within the time limits.

This claim was never resolved on the merits before June 12, 1962, or at any other time. The correspondence on the property after March 2, 1962, shows that the General Chairman continually questioned Baker's right to displace a junior employe. As a result of such correspondence, Baker resigned as an employe of the Carrier on October 8, 1962.

The doctrine of estoppel is not applicable in this case. Here, we have a specific contractual obligation with which Carrier did not comply. Employes proceeded in the manner set forth in that Agreement. They did not fail to do anything they were obliged to do.

There is no dispute, however, that the Carrier did deny the claim in the July 5, 1962 letter. Since this is a continuing claim, the liability of the Carrier is limited to the date when the Employes received Carrier's denial, which in this case is July 6, 1962. See National Dispute Committee Decision No. 16 and Awards 14904, 14603, 14502, 14426 and 14369.

Employes have presented no evidence on the merits of the claim. In their Rebuttal Brief they say that "they do not desire to become involved in a discussion on the merits of the instant claim . . ."

FINDINGS: The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds and holds:

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 Carrier did not comply with the provisions of Article V of the August 21, 1954 Agreement as stated in the Opinion.

AWARD