TRANSPORTATION-COMMUNICATION EMPLOYEES UNION
(Formerly The Order of Railroad Telegraphers)
(b) Carrier violated the agreement between the parties when it issued Seniority Roster of January, 1966, for the Fourth and Fifth Districts (Southern District) and failed to show the name of W. A. Scholtes thereon, with his rightful seniority date of January 9, 1956.
awarding to the successful applicants Northern Zone Relief Assignment No. 1 and Positions Nos. 7 and 11, clerk-operators at New Smyrna Beach, Florida, advertised in Bulletins CTD-73, 74 and 75, dated December 13, 1965 (see Carrier's Exhibit H), were mailed to Mr. W. F. Lawton at Box 236, Bunnell, Florida, his last posted address, but were returned to the Railway, undelivered, by U.S. Post Office Department on January 8, 1966, marked "Unclaimed." The envelope in which these bulletins had been forwarded also indicated that someone had attempted to forward these communications to Mr. Lawton at Opa-Locka, Florida. (Photographic copy of this envelope is attached hereto as Carrier's Exhibit 1, and by reference is made a part hereof.)
9. Since by the return of the bulletins which had been mailed to Mr. Lawton on December 27, 1965, it was obvious that he had failed to comply with the provisions of Rule 25(d), which is quoted at page 6 of this Submission, the following letter was addressed to Mr. Lawton over the signature of Chief Train Dispatcher E. H. Hall under date of January 11, 1966, by Certified Mail-Return Receipt Requested:
On December 27, 1965, bulletins were mailed to you at your last posted address, namely, Box 236, Bunnell, Florida. These bulletins, after having been forwarded by someone to Opa Locka, Florida, were returned by the Post Office Department, undelivered, marked 'Unclaimed: Since you have failed to comply with the above quoted agreement provision, you have forfeited your seniority and severed your employment relationship with the Florida East Coast Railway Company."
(Photographic copy of Mr. Hall's letter of January 11, 1966, is attached hereto as Carrier's Exhibit J, and by reference is made a part hereof.)
10. The disputes here involved were progressed on the property in the usual manner, conference discussion thereon being held by Vice President and Director of Personnel R. W. Wyckoff, final appeal officer of the Railway, and Vice President O. C. Jones of the Transportation-Communication Employees Union on April 1, 1966.
An examination of the record discloses that the issues involved in this claim are identical with those that were previously presented to this Board in our Award 15021.
Prior to the abolishing of all jobs at 6:00 A. M, on January 23, 1963, Scholtes, who had established seniority as a telegrapher on the Carrier's 4th and 5th Districts on January 9, 1956, was employed as ticket-clerk operator at Hollywood, Florida. The last address furnished to the Carrier by Scholtes was No. 717 S.E. 16th Street, Fort Lauderdale, Florida.
Under date of July 27, 1965, Bulletin No. CTD-30 was issued by Carrier advertising position of ticket clerk-operator at North Miami, Florida.
Under date of July 28, 1965, Bulletin No. CTD-31 was issued by the Carrier cancelling Bulletin No. CTD-30, dated July 27, 1965.
Both Bulletins bearing Nos. CTD-30 and CTD-31 were mailed to Claimant Scholtes at his last posted address with Carrier, to-wit, No. 717 S.E. 16th Street, Fort Lauderdale, Florida. The envelopes in which these bulletins were contained and forwarded to Claimant Scholtes were returned by the U.S. Post Office Department on August 2, 1965, each being marked with the notation "unclaimed" and "Don't live here." It is evident from the notations on the returned envelopes that Claimant Scholtes failed to comply with the provisions of Rule 25(d) in that he did not within the time provided by the provisions of Rule 25(d) file with the Carrier any change in his address, i.e., within 5 days after being laid off.
Under date of August 3, 1965, the Carrier addressed a letter to Claimant Scholtes, by Certified Mail-Return Receipt Requested, as follows:
The return receipt requested by the Carrier shows that this letter was received and signed for personally by Claimant Scholtes at Dania, Florida, on August 13, 1965.
The Carrier claims that it heard nothing further from Claimant Scholtes until a letter dated March 2, 1966, was received from Mr. I. E. Hamilton, the General Chairman of the Union. In this letter the General Chairman refers to the contents of the letter of August 3, 1965, and requests that Claimant Scholtes be restored to his rightful place on the seniority roster. The letter also denied that the General Chairman received a copy of the August 3, 1965 letter. It is significant to note that the General Chairman's letter is dated and was received approximately 7 months after the Carrier's letter of August 3, 1965.
The Carrier wrote to the General Chairman by letter dated March 4, 1966, wherein, among other things, the General Chairman was advised that his request that Claimant Scholtes be restored to the seniority roster would not be entertained or granted because of Claimant Scholtes' failure to comply with the provisions of both Rule 25 (d) and Rule 23 of the Agreement.
"RULE 23.
TIME LIMITS FOR HANDLING GRIEVANCES
OR CLAIMS
This Board has previously held that where the provisions of an agreement are clear and unambiguous, they must prevail even over conflicting practices. See Award 14599.
The record discloses that although requested, the Carrier refused to waive the terms of the Agreement.
This Board has also sustained the forfeiture of seniority rights because of the failure to file or renew address pursuant to the provisions of the agreement. See Awards 9101, 5909, 4535, 3840 of this Board and Award 2129 of the Fourth Division.
At the panel discussion, the Claimant's representative maintained and vigorously argued that the provisions of Rule 17 of the Agreement should prevail in this dispute. After a careful examination of the record we find no substantial evidence to sustain such contention.
The record in this case is clear that Claimant Scholtes was duly notified of the forfeiture of his seniority rights by letter dated August 3, 1965, a letter sent by Certified Mail, and which he personally signed for on August 13, 1965; that no protest was filed in connection with the terms of the letter until March 2, 1966, a period of approximately 7 months after August 3, 1965, which is far in excess of the time limit set forth in Rule 23 (a) of the Agreement. Under the clear and unambiguous provisions of Rule 23 (a), the grievance filed on behalf of Claimant Scholtes was not timely made and is, therefore, barred.
FINDINGS: The Third Division of the Adjustment Board, 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