Award Number 17291
Docket Number CL-17891
NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Louis Yagoda, Referee
PARTIES TO DISPUTE:
BROTHERHOOD OF RAILWAY, AIRLINE AND STEAM
SHIP CLERKS, FREIGHT HANDLERS, EXPRESS AND
STATION EMPLOYES
SOUTHERN PACIFIC COMPANY (Pacific Lines)
STATEMENT OF CLAIM: Claim of the System Committee of the
Brotherhood (GL-6473) that:
(a) The Southern Pacific Company violated the current Agreement
between the parties when it failed to deny claim made by
employe J. G. Brown within the time limit prescribed in Article
V Section 1(a) of the Chicago Agreement, August 21, 1964; and,
(b) The Southern Pacific Company shall now be required to allow
the claim as presented in accordance with the mandatory requirement of Article V Section 1(a) of the August 21, 1954
Agreement.
EMPLOYES' STATEMENT OF FACTS: There is in evidence an Agreement bearing effective date October 1, 1940, reprinted May 2, 1965, including
subsequent revisions, (hereinafter referred to as the Agreement) between
the Southern Pacific Company (Pacific Lines) (hereinafter referred to as
the Carrier) and its employes represented by the Brotherhood of Railway
Airline and Steamship Clerks, Freight Handlers, Express and Station Employes (hereinafter referred to as the Employes) which Agreement is on
file with this Board and by reference thereto is hereby made a part of
this dispute.
Mr. J. G. Brown, hereinafter referred to as the Claimant, filed time
card claims, Exhibit A and B, for eight (8) hours' additional compensation
May 11, 12, 13, 14, 15, 18, 19, 20, 21 and 22, 1966, account alleged violations of Rules 20, 26 and 33 of the Agreement.
On July 19, 1966, Claimant wrote the following letter to Mr. B. M.
Lavelle, Division Chairman:
"Attached are copies of time cards sent in as claims which I believe
are clearly stated.
To date I have not received any information from the timekeeping bureau. No decline-no acceptance.
Will you kindly follow through and determine reason for nonreply or non-payment."
8. By letter dated October 6, 1966 (Carrier's Exhibit "H"), Petitioner's
General Chairman appealed the claim to Carrier's Assistant Manager of
Personnel.
9. Applicable time limit provisions governing handling of the claim at
the highest level on the property were extended by Agreement of the parties
hereto and Carrier's Assistant Manager of Personnel denied the instant claim
by letter dated February 27, 1968 (Carrier's Exhibit "I"), stating:
"As stated to you in conference, the claimant was awarded
position involved on Assignment Notice issued May 16, 1966, and
placed thereon as soon as practicable on May 25, 1966, as provided
in Rule 33(e), which handling did not contravene any provision of
the Clerks' Agreement.
"Contrary to your assertion, the record indicates the Superintendent's letter to the claimant of June 28, 1966, included reasons
for denial. Additionally, said letter of declination was discussed in
conference between the Division Chairman and the Superintendent's
representative on August 11, 1966. A copy of the letter of June 28,
1966 was furnished to the Division Chairman in the Superintendent's
letter of August 12, 1966, wherein the latter affirmed his decision
on the basis of his letter of June 28, 1968. Such handling fully complied with Article V of Agreement of August 21, 1954.
"In view of the above the claim is not supported by Rule 20,
26, 33 or any other provision of the Clerks' Agreement or by
Article V of Agreement of August 21, 1954 and is denied."
The first paragraph of Carrier's letter, quoted immediately above, inadvertently referred to claimant being awarded Position 59(T) and placed
thereon May 25, 1966. The record should correctly show that Guaranteed
Extra Board employe L. D. Stanley was awarded said position and placed
thereon May 24, 1966. Also, part of the record refers to Position No. 11 as
Train Clerk; however, the correct title is Report Clerk.
(Exhibits not reproduced)
OPINION OF BOARD:
Article V, Section 1(a) of the Agreement reads
as follows:
"(a) All claims or grievances must be presented in writing by
or on behalf of the employee 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 sixty
days from the date same is filed, notify whoever filed the claim or
grievance (the employee 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."
The record shows the following sequence of events in the circumstances
which constitute the subject of this dispute.
1. It is undisputed that on May 25, 1966, there was received in Carrier's
Division Superintendent's office at Sacramento, California a claim submitted
by Report Clerk J. G. Brown on his semi-monthly time card, as follows:
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"I claim:-L. D.
Stanley-guaranteed extra employee-was
awarded Pos. #59T on vacancy notice #10-6-16-66. Mr. Stanley
was kept on guaranteed extra board after award date thereby preventing me-a senior qualified regular employee from exercising my
seniority. Rules 20-26-33."
2. Carrier has submitted as an exhibit in the record, a copy of a
memorandum dated San Francisco, June 28, 1966 and bearing as addressee
the Claimant employe at Roseville, California and on which is imprinted a
stamp "1966 Jul. 5 am 7 32". The latter stamp is declared by Carrier to
show that this copy was received in its Sacramento Division on the date and
at the time shown.
This memorandum states:
"No basis for claim. Clerk was held to protect vacation vacancy
May 11 thru 22, 1966 of Pos. #11 in accordance with Rule 33 (sec E)
of Clerks' Agreement"
Claimant denies having received said memorandum.
3. On July 19, 1966, fifty-five days after date of the original claim,
Mr. Brown wrote to his Organization's Division Chairman, enclosing photocopies of time cards covering dates of claims, stating that he had received
no reply to his claim from the Carrier and asking the Chairman to "follow
through and determine reason for non-reply or non-payment."
4. Under date of July 27, 1966, sixty-one days after the date of the
original claim, the Organization's Division Chairman wrote to Carrier's
Superintendent as follows:
"We have before us photostatic copy of time cards of claims
presented by employe J. G. Brown, Roseville Yard Office for May
11 through 15 and May 18 through 22, 1966 on Position Train Clerk
No. 11.
'In view of the fact that the sixty (60) days have expired since
claims were filed and no declination has been received by the claimant, we request that claims be paid as filed.
'Kindly acknowledge receipt hereof, make necessary investigation,
and advise if claims will be allowed. If it is your intention to deny
the justifiable claim, kindly set a definite date and time for conference."
5. Under date of August 12, 1966, eighty-five days after date of
original claim, Carrier's Superintendent replied as follows:
"Referring to Decision Chairman, B. of R. C., B. M. Lavelle's
letter of July 27, 1966, concerning claim presented by employee J. G.
Brown, Roseville Yard Office for May 11 through 15 and May 18
through 22, 1966, Train Clerk Position #11.
'Attached is copy of declination notice addressed to Mr. J. G.
Brown, Train Clerk, Roseville, dated June 28, 1966.
"In view of the attached declination notice there is no basis for
the claim to be allowed under the time limitation of the Clerks'
Agreement and it is therefore denied.
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"This claim was discussed with you in conference on August
11, 1966, at which time no additional facts were presented that
would alter my opinion in the case; therefore my denial is affirmed.
"Please acknowledge receipt on attached copy of this letter."
The form in which this dispute has reached this Board precludes our
evaluation of and decision on the merits of the original substantive claim.
i.e. whether the subject employe was denied his seniority rights in violation
of Rules 20, 26 and 33 of the Agreement for 10 days in May 1966 and is
consequently entitled as remedy therefor to eight hours' additional compensation for each of these days.
Claimant relies entirely on its contention that Carrier has forfeited its
right to contest that claim by failing to act within the prescribed time limit
of Article V, Section 1(a) and is therefore bound by the requirement therein
that under such lapse the claim must be allowed as presented.
Carrier, although arguing incidentally in its submission, against the
merits of Claimant's original claim (Carrier contending that it acted within
the permissible 15 calendar days in assigning the Claimant and that, in any
event, no deprivation resulted), responds primarily to the procedural question of waiver raised by the Claimant. On this, its position is that its denial
of claim was addressed to Claimant on June 28, 1966, well within 60 days
from date of receipt of the claim and mailed on the same date to the
known address of the Claimant employee in the same manner and by the
same means by which it has responded to various claims over a period of
65 years.
Under these circumstances, the claim must be sustained or denied on the
single question of whether forfeit against the Carrier exists because of failure
to act within the time limits imposed by Article V, Section 1(a).
The controlling Agreement proviso puts a duty on the Carrier to "notify"
the claimant or grievant of disallowance within the given time period as an
alternative to
mandatory allowance of claim.
We do not find in the record, sufficient evidence that Carrier complied
with its obligation to notify the Claimant of reasons for disallowance within
60 days from the date the claim was filed. The display of a copy of such
alleged disallowance, timely dated and stamped as timely received by Carrier's
supervisory personnel, is not sufficient proof of timely mailing of notice to
Claimant. (Awards 10173 and 10742).
We find therefore that Carrier has not met its burden of proving timely
notification and Claimant must
therefore be
sustained.
FINDINGS: The Third Division of the Adjustment Board, upon the
whole record and all the evidence, finds and holds:
That the parties waived oral hearing:
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
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That the Agreement was violated.
AWARD
Claim sustained.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
ATTEST: S. H. Schulty
Executive Secretary
Dated at Chicago, Illinois, this 10th day of July 1969.
Central Publishing Co., Indianapolis, Ind. 46206 Printed in U.S.A.
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