Award No. 15798
Docket No. CL-15802
NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
(Supplemental)
Daniel House, Referee
PARTIES TO DISPUTE:
BROTHERHOOD OF RAILWAY AND STEAMSHIP CLERKS,
FREIGHT HANDLERS, EXPRESS AND STATION EMPLOYES
SOUTHERN RAILWAY COMPANY
STATEMENT OF CLAIM:
Claim of the System Committee of the
Brotherhood (GL-5790) that:
(a) The Carrier violated the Agreement when it unjustly and
improperly disqualified Rate Clerk Val Foster from his Rate Clerk
position when it disqualified him under the "Procedure For Determining Employees' Qualifications Mediation Agreement dated April
21, 1932." Mr. Foster at the time of his disqualification had better
than twenty years of rate experience, all in the same department
of the Southern Railway Company.
(b) Mr. Foster shall be compensated at the rate of $22.75 each
day, plus appropriate increases, beginning January 28, 1964, and
continuing five days each week, until he is restored to his Rate
Clerk position.
EMPLOYES' STATEMENT OF FACTS: This dispute is between the
Brotherhood of Railway and Steamship Clerks, Freight Handlers, Express
and Station Employes as the representative of the class or craft of employes in which the claimant in this case held position and the Southern
Railway Company.
Mr. Val Foster is carried on the Southern Railway System, Atlanta
Accounting Rate Department, Seniority Roster-Group 1, Clerks, Office of
Director, Revenue Accounting, with a seniority date of February 1, 1943.
He, at the time of the initial claim, had been an employe of the Southern
Railway Company for more than twenty years, and had worked as a rate
clerk for this entire period.
Mr. J. T. Bolling, Director, Revenue Accounting, in his letter of January
28, 1964, Employes' Exhibit A, addressed to Mr. Val Foster, Atlanta, Georgia,
did disqualify Mr. Foster from his position of Rate Clerk in the Atlanta
Accounting Department.
from the right to seek to make another displacement. When possible
to secure tangible evidence, it will be used to support the judgment
of the supervising official, and the employe will be entitled to receive
a photostat or other copy of such evidence upon request.
(3) In event a hearing is held in connection with a case of this
kind, either before or after assignment to the position sought, the
management will insert in the transcript of the hearing a copy of
the statement of duties and responsibilities of the position in question, and the employe will insert therein a statement of his education, training and experience which he claims have fitted him to
undertake the new work. All questions and answers in such hearings
will be confined to the clear purpose of establishing the applicant's
ability or lack of ability to perform the required duties.
a x ~w_
The so-called Chicago Agreement of August 21, 1954 contains the following provision:
"ARTICLE V.
CARRIERS' PROPOSAL N0. 7
Establish a rule or amend existing rules so as to
provide time limits for presenting and progressing
claims or grievances.
This proposal is disposed of by adoption of the following:
The following rule shall
become effective
January 1, 1955:
1. All claims or grievances arising on or after January 1, 1955
shall be handled as follows:
(a) All claims or grievances must be presented in writing by or on behalf of the employe involved to the officer of
the Canter authorized to receive same, within 60 days from
the date of the occurrence on which the claim or grievance
is based. Should any such claim or grievance be disallowed,
the carrier shall, within 60 days from the date same is
filed, notify whoever filed the claim or grievance (the employe or his representative) in writing of the reasons for
such disallowance. If not so notified, the claim or grievance
shall be allowed as presented, but this shall not be considered as a precedent or waiver of the contentions of the
Carrier as to other similar claims or grievances."
(Exhibits not reproduced.)
OPINION OF BOARD:
On January 28, 1964, Carrier notified Claimant
that he was disqualified as a rate cleric, which he had been since 1946.
On January 30, Brotherhood requested an investigation of the matter under
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Rule 40. On January 31, Carrier replied that Rule 40 did not apply, and
suggested that Brotherhood intended to request a hearing under the Mediation
Agreement of April 21, 1932. On February 3, Brotherhood replied, still
claiming that Rule 40 applied, but saying that "if . . . the Mediation Agreement . . is the procedure to take in obtaining a hearing in this case, this
would be my request" On February 7, Carrier replied, granting a hearing
on the basis that it had been requested under the Mediation Agreement.
That hearing was held on February 26, and on April 23, Carrier's Director of
Revenue Accounting notified the Brotherhood that as a result of considering all of the evidence submitted at the hearing he found the disqualification "in order."
Meanwhile, on April 16, Brotherhood filed a formal claim:
"This claim is filed for and in behalf of Mr. Val Foster, account
of being disqualified from his position as a Rate Clerk after more
than twenty years.
This claim is filed regardless of what decision that will be made
in connection with the hearing that was held on February 26, 1964,
as
requested.
Please advise
when this claim will be paid or your reason for
declining this claim."
On June 12, Carrier denied the April 16th claim; the claim was pro
gressed through subsequent steps and, for the first time, in its letter finally
declining the claim, Carrier raised as a defense that the claim, having been
filed more than 60 days after the occurrence on which it was based, was
barred by reason of non-compliance with Article V, Section 1(a).
Brotherhood argues that Carrier's
defense that the claim is barred
because it was not timely filed is wrong because Chairman Yancey "initiated immediate handling concerning the `disqualification"' two days after
the January 28th disqualification. If this argument is to be found valid, it
would have to be on the basis that Mr. Yancey's January 30th letter requesting an investigation is deemed the initial claim by Brotherhood; but Brotherhood itself says in its Submision that "the initial claim was filed on April
16, 1964"; and the April 16th letter of claim includes an insistence that
the claim filed in it be treated separately from the hearing proceeding initiated as a result of the January 30th letter. Thus, the fact is that the claim
in the matter before us was not initially timely filed under the provisions
of Article V.
The issue of non-compliance with Article V was presented by Carrier
while the case was still on the property and was thus timely raised (NDC
Decision 5); and none of the circumstances
were such as to lead us to conclude that there was estoppel or waiver of Carrier's right to raise the issue;
nor are there any circumstances which mitigate the effect of Brotherhood's
failure to meet the time limit requirements of Article V. We will, therefore,
dismiss the claim without considering it on its merits.
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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
That Brotherhood did not timely file the claim.
AWARD
Claim dismissed.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of THIRD DIVISION
ATTEST: S. H. Schulty
Executive Secretary
Dated at Chicago, Illinois, this 19th day of September 1967.
Keenan Printing Co., Chicago, 111. Printed in U.S.A.
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