THIRD DIVISION
(Supplemental)
STATEMENT OF CLAIM: Claim of the Brotherhood of Railroad Signalmen on the Southern Railway Company et al:
EMPLOYES' STATEMENT OF FACTS: W. R. Crowe with a seniority date of 5-16-60 in the Signal Helper Class on the Eastern Lines entered a hospital because of illness in March, 1962. He underwent treatment and was released with his doctor's O.K. in April. He was not, however, permitted to return to work with reasonable promptness after an examination on February 25, 1963, by Carrier's physician, Dr. Moon at Asheville, North Carolina.
Ile was returned to work by Carrier following an exchange of correspondence between General Chairman E. C. Melton and Signal and Electrical Superintendent J. M. Stanfill. Mr. Melton's letter of May 18, 1963, is Brotherhood's Exhibit No. 1, and Mr. Stanfill's reply dated May 20, 1963, is Brotherhood's Exhibit No. 2.
On June 11, 1963, General Chairman Melton addressed another letter to the Signal and Electrical Superintendent (Brotherhood's Exhibit No. 3) in which he cited Carrier to unjustified delay in permitting Mr. Crowe to return to work. He stated that this delay had caused the Signal Helper through no fault of his to lose approximately 90 days of work. He charged that the examination which was made on February 25th did not disclose anything which would prevent the doctor from rendering a favorable report the same as Dr. Clayton did nearly three (3) months later. No further examinations were made; the decision of Dr. Clayton to allow Mr. Crowe to return to work was based solely on the results of the one examination.
OPINION OF BOARD: The Claimant in this case had a history of physical disability for a substantial period of time prior to the filing of this action. Based on a physical examination given to the Claimant on February 25, 1963, the petitioning Organization files for all time lost between March 1, 1963 and May 20, 1963 by letter under date of June 11, 1963.
The Carrier defends on the basis that Article V of the Agreement of August 21, 1954, now part of the Signalmen's Agreement was violated: It provides that:
The evidence of record indicates that the date of the occurrence on which this claim was based, was February 2.5, 1963, and the date upon which it was submitted in writing to the Carrier was June 11, 1963. Obviously the sixty day period required by Article V of the Agreement of August 21, 1954 has been disregarded. We are left with no alternative other than to say that this claim is barred by Article V, and as a consequence this Board has no jurisdiction over it. We will dismiss the claim.
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 no jurisdiction over the dispute involved herein.
The undersigned takes particular exception to the Majority's holding that this Board has no jurisdiction over the dispute between the parties, and my not here commenting on the interpretation and application of the controlling agreement is not to be construed as concurrence.
The jurisdiction of the Board is set out in Section 3, First (i) of the Railway Labor Act. In order to be eligible for presentation to this Board a dispute must be between an employe or group of employes and a carrier or carriers. The Majority plainly state in their Findings "That the Carrier and Employes involved in this dispute are respectively Carrier and Employes within the meaning of the Railway Labor Act."
The Act further provides that disputes must grow out of grievances or out of the interpretation or application of Agreements concerning rates of pay, rules, or working conditions. The instant dispute involved the interpretation and application of rules of the Agreement of August 21, 1954 between the parties.
The Act further provides that such disputes must be handled in the usual manner up to and including the chief operating officer of the carrier designated to handle such disputes and fail to reach adjustment. The employes aver that the instant dispute was so handled and the carrier, though contending that this Board is without jurisdiction, does not categorically deny it.
Further evidence that the Majority actually recognized the Board's jurisdiction is found in the fact that they interpreted an Agreement between the parties; if we have no jurisdiction, their interpretation is a nullity.