NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
John J. McGovern, Referee
PARTIES TO DISPUTE-
TRANSPORTATION-COMMUNICATION EMPLOYEES UNION
(Formerly The Order of Railroad Telegraphers)
SOUTHERN RAILWAY COMPANY
STATEMENT OF CLAIM:
Claim of the General Committee of The Order
of Railroad Telegraphers on the Southern Railway, that:
1. Carrier violated the Telegraphers' Agreement when on the following Saturdays, August 11, 18, September 1, 8, 15 and 22, 1962, and
continuing on subsequent Saturdays thereafter, it removed work being
performed by regular assigned Agent-Telegrapher E. D. Atkins,
Marengo, Indiana, and placed this work on employes of the High Rock
Quarry at Marengo, Indiana, employes not covered by the Telegraphers' Agreement. On each of the dates mentioned herein Claimant
Atkins was available and ready to protect a call on one of his regular
rest days but was not allowed to do so.
2. Carrier shall compensate E. D. Atkins, regular assigned
agent-telegrapher, Marengo, Indiana, for one (1) call (two hours and
forty minutes) on each of the following dates, August 11, 18, September 1, 8, 15 and 22, 1962, at time and one-half times the Marengo,
Indiana agent-telegrapher pro rata rate of. $2.55 per hour, total for
six (6) calls $61.20, and continuing on subsequent Saturdays thereafter, Carrier shall pay this amount as long as this violation continues,
which dates are to be determined by a joint check of the Carrier's
records.
3. This is a continuing claim.
EMPLOYES' STATEMENT OF FACTS:
Marengo, Indiana, is located on
the St. Louis Division of this railroad. At this location is the negotiated position
of Agent-Telegrapher with a negotiated rate of pay of $2.55 per hour. Claimant
E. D. Atkins is the regular assigned Agent-Telegrapher at Marengo, Indiana,
having acquired this position by the use of his seniority rights. His assigned
work week is Monday through Friday, 8:00 A. M. to 5:00 P. M., with one hour
for lunch. His assigned rest days are Saturday and Sunday. He acquired this
position through his seniority rights in November of 1961.
The High Rock Quarry is located at Marengo, Indiana. This quarry has
shipments to be billed out six days per week, Monday through Saturday, dur-
"RULE 44.
TERMS OF AGREEMENT
This agreement supersedes and cancels all former agreements, but
does not, except where rules are changed, alter former accepted and
agreed to practices, working conditions or interpretations.
This agreement is revised as of September 1, 1949 and shall continue in effect until thirty (30) days' written notice is given by either
party to the other of desire to revise or modify in accordance with the
provisions of the Railway Labor Act."
In addition, the Chicago Agreement of August 21, 1954 contains the following, identified as Article V, Sections 1 (a) and (b):
"(a) All claims or grievances must be presented in writing by or
on behalf of the employe involved, to the officer of the Carrier 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.
(b) If a disallowed claim or grievance is to be appealed, such
appeal must be in writing and must be taken within 60 days from
receipt of notice of disallowance, and the representative of the Carrier
shall be notified in writing within that time of the rejection of his
decision. Failing to comply with this provision, the matter shall be
considered closed, but this shall not be considered as a precedent or
waiver of the contentions of the employes as to other similar claims
or grievances. It is understood, however, that the parties may, by
agreement, at any stage of the handling of a claim or grievance on
the property, extend the 60-day period for either a decision or appeal,
up to and including the highest officer of the Carrier designated for
that purpose.
(Exhibits not reproduced.)
OPINION OF BOARD:
Except for different dates, this claim is identical
with one filed by the Employes on May 5, 1962, and which they failed to handle
to a conclusion within the time limits provided by Article V, August 21, 1954
Agreement.
With respect to both claims the Employes consistently contended that the
subject matter involved a "continuing claim." The Carrier, at the local level,
contended that neither action constituted a "continuing claim." However, when
the present claim reached the Board, Carrier appears to have adopted the
Employes' characterization of the claim as a continuing one.
Therefore, in line with the parties' apparent agreement as to the type of
claim involved; and assuming but specifically not deciding that the subject
16010 0
matter is in fact a "continuing claim" it must be dismissed on authority of the
line of awards including 9447, 10251, 10329, 10453, 12851, 14829 and 15327.
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 Employer 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 15th day of December 1967.
Keenan Printing Co., Chicago, Ill. Printed in U.S.A.
16010 10