NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
(Supplemental)
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood that:
EMPLOYES' STATEMENT OF FACTS: Beginning on or about December 5, 1965, the Carrier assigned the work of repairing or rebuilding frogs, switch points and other track materials by the welding process to the Hunt Brothers Welding Company and to the Conley Frog and Switch Company, whose employes hold no seniority rights under the Agreement. Said frogs, switch points and other track materials are removed from the track by maintenance of way employes and are subsequently shipped to the above named companies. After the frogs, switch points and other track materials are repaired or rebuilt, they are returned to the Carrier and reinstalled in the track by maintenance of way employes.
The claimants have established and hold seniority rights in their respective classes in the Welding Subdepartment. They are fully qualified and properly equipped to perform all work of the character here involved.
Stores Department from all over the System. He further called the General Chairman's attention to the fact that the General Chairman's letter filing the claim had been referred to the Chief Engineer, and that it had been declined within the time limit period.
Copies of the above referred-to correspondence and subsequent correspondence are attached as Carrier's Exhibits AA through HH.
A copy of the current working rules agreement is on file with the Thir;l Division and by reference is made a part of this submission.
OPINION OF BOARD: On or about December 5, 1965, Carrier contracted out work of rebuilding frogs. Organization protested the contracting out of this work as a violation of the parties' Agreement by a claim filed with Division Engineer McGee on February 3, 1966. Division Engineer McGee referred the claim to Chief Engineer Clark by letter dated February 7, 1966. The latter denied the claim on February 16, 1966. The claim was not denied by Division Engineer McGee within the 60 day period stipulated in Rule 26(a) although Chief Engineer Clark had so done within that period.
Organization argues that it submitted the claim to the representative designated by the Carrier under Rule 26(a) and was entitled to a reply from him within 60 days of submission. Failure of the designated agent to reply by that time must result in granting the claim. On the merits, Organization contends that the rebuilding of frogs is welders' work and reserved to them under Rule 38(b).
Carrier asserts that the claim was properly referred to the Chief Engineer and was properly and timely denied by him. On the merits, it argues that Rule 38(b) permits the contracting of rebuilding frogs when as here, its employes lack the equipment on which it can be done. Additionally it asserts that its contracting out of the work was justified under Rule 2(f) due to its lack of necessary equipment and the unavailability of electric welders on layoff to do the work.
Rule 26 (a) specifies that claims must be presented . . "to the officer of the Carrier authorized to receive same . ." In a letter .dated May 13, 1960 Carrier's Director of Personnel confirmed an agreement with the Organization that claims
When Organization filed its claim it did so as required by the May 13, 1960 letter. In so doing it had a right to assume that the claim would be responded to by the Division Engineer. Then if there was a denial, it would have had a right to reformulate its claim for appeal to the Chief Engineer who was authorized by the Carrier to handle appeals from the Division Engineer. This right of appeal to which the parties had agreed, has been abrogated by Carrier's action in referring the claim to the Chief Engineer, without a denial by the Division Engineer.
Carrier under Rule 26(a) had the right to authorize who would receive claims. It agreed with Organization as to who would receive claims and on appeal procedure thereafter. Carrier was obligated under this Agreement to have the Division Engineer decline the claim within the time provided. It had no authority to refer the claim to a higher official and thus deny Organization's right to a specifically agreed upon level of appeal. (Hamilton 14031.) Nor did the Chief Engineer have the right to deny the claim at this stage under the terms of the May 13, 1960 letter. (Dorsey 11374.)
In the instant case the appropriate designated officer of the Carrier failed to disallow the claim within the time limits specified by Rule 26(a). Accordingly the claim must be allowed as presented. There is thus no need to consider the merits.
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