Award Number 17574
Docket Number CL-17746
NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
James R. Jones, Referee
PARTIES TO DISPUTE:
BROTHERHOOD OF RAILWAY, AIRLINE AND
STEAMSHIP CLERKS, FREIGHT HANDLERS, EXPRESS
AND STATION EMPLOYEES
ERIE-LACKAWANNA RAILWAY COMPANY
STATEMENT OF CLAIM:
Claim of the System Committee of the
Brotherhood (GL-6434) that:
1. Carrier failed to comply with the procedural requirements
agreed upon by the parties with respect to application of Rule 41
of the Clerks' Agreement effective July 16, 1962 as well as national agreement dated August 21, 1954 when the General
Manager-Labor Relations, failed to decline within 60 days
from date conference was held, claim filed on behalf of Vincent
J,
Cull
and
2. Carrier shall now allow claim as presented, i.e.
(a) Adjust the rate of pay of General Clerk, Vincent J. Cull,
who was awarded position of General Clerk under Bulletin
NYD A-46 by $1.68 per day, retroactive to April 1, 1965.
EMPLOYES' STATEMENT OF FACTS: On March 23, 1965, Carrier
issued Bulletin No. A-42 abolishing three (3) positions at 28th Street, New
York, N.Y. (Employes' Exhibit A) and Bulletin No. A-43 abolishing position of Comptometer-Operator Clerk at Pier 28, N.R. (Duane Street) New
York. (Employes' Exhibit B).
Included in Bulletin A-42 was position of Cashier, rate $22.9104 per
day. Duties assigned to this position included handling of tractor-trailer
tariff and demurrage work.
On March 25, 1965, Carrier issued Bulletins A-46 and A-47, establishing
two (2) General Clerk positions at Hoboken Local Freight Office, Hoboken,
N.J. with assigned hours 8 A.M. to 5 P.M., rest days Saturday and Sunday.
(Employes' Exhibits C and D). One position was rated at $22.9104 per day
(rate of the abolished Cashier's position) and the other $21.2304 per day
(rate of the abolished Comptometer-Operator Clerk's position), a difference
of $1.68 per day. Qualifications for each of the two General Clerk positions
were identical and read:
"Applicant must be a competent typist. Thoroughly familiar with
Tractor-Trailer Tariff and demurrage Tariff. Also check and verify
all trucking bills and handle all correspondence in connection with
Tractor-Trailer cars and other duties as assigned."
Please advise date the new rate for the
General Clerk is applied
and payroll period in which adjustment is made covering the period
April 1,1965 to April 30, 1967.
On May 8, 1967, Carrier replied as follows concerning the General Chairman's allegations and also on same date replied in the same manner concerning Claim 1610 (Item 1088), see Carrier's Exhibit D.
File: 70.1-3-1129
May 8, 1967
CLERKS 1660
Mr. H. L. Beck, General Chairman
Brotherhood of Railway & Steamship Clerks
848 Engineers Building
Cleveland, Ohio 44114
Dear Mr. Beck:
This has reference to your letter dated April 16, 1967, file Claim
#1650, concerning claim filed on behalf of Vincent J. Cull, Hoboken
Local Freight Station, alleging violation of the Clerks' Agreement
account advertising and awarding two General Clerk positions at
different rates, requesting both positions be rated the same, which
case was discussed in conference November 2, 1966 by you, Messrs.
Schmidt, Jenkins and Vet with Messrs. Snack and R. White.
Your allegation that this claim was allowed to outlaw by Carrier
account not denied within 60 days from date of conference is not consistent with the facts. Our conference file notes show that Claim
1610 (Item 1088), Claim 1650 (Item 1129) and J. S. Claim #6
(Item C-5) were discussed at the same time and were to be further
discussed in negotiating a memorandum or implementing agreement
and that no decision was rendered by Carrier in conference. Before
agreement could be accomplished it was necessary that further
facts and information be developed in connection with various questions you raised during the conference. Thus, your allegation that
Carrier has allowed this claim to outlaw is completely without merit.
Moreover, there is no record of an agreement or understanding
that Carrier must render its decision within 60 days following conference. If it, nevertheless, is to be your position that this claim is
outlawed, it is essential for the record that, based upon the facts
and reasons furnished by the Superintendent, this claim is denied.
Subsequent correspondence exchanged between the parties is evidenced
by the following Exhibits:
Carrier's Exhibit E-General Chairman's letter of November 24,
1967.
Carrier's Exhibit F-Carrier's reply December 1, 1967. .
Carrier's Exhibit G-General Chairman's letter of March 1, 1968.
(Exhibits. Not Reproduced)
OPINION OF BOARD:
The question before this Board is a procedural
one. Specifically, did the- Carrier fail to deny the instant claim in accordance
with the provisions of Article V of the August 21, 1954, National Agreement
and Rule 41 of the Clerks Agreement effective July 16, 1962?
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Claimant relies upon Rule 41, paragraphs (a) (b) and (c) to support this
claim. These provisions follow:
"(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 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 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.
"(c) The requirements outlined in Paragraphs (a) and (b), pertaining to appeal by the employe and decision by the Carrier, shall
govern in appeals taken to each succeeding officer, except in cases
of appeal from the decision of the highest officer designated by the
Carrier to handle such disputes. All claims or grievances involved
in a decision by the highest designated officer shall be barred
unless within 9 months from the date of said Officer's decision proceedings are instituted by the employe or his duly authorized representative before the appropriate division regional board of adjustment that has been agreed to by the parties hereto as provided in
Section 3, Second of the Railway Labor Act. It is understood, however, that the parties may be agreement in any particular case
extend the 9 months period herein referred to."
The record shows that Article V and Rule 41 were modified by letter of
January 19, 1955, from Carrier's Assistant Vice President White to all General Chairmen. This letter stated that the 60-day time limit provision could be
extended by agreement of the parties. This extension could be effected at the
time grievances are submitted to Mr. White's office by an acknowledgment in
writing with the advice that the claim will be held in abeyance until discussed in conference. This was agreed to by General Chairmen.
The instant claim was filed May 8, 1965. Carrier's highest appellate
officer, Vice President Labor Relations, received Claimant's appeal which was
acknowledged in writing by Carrier on August 26, 1965, with the advice that
the claim would be discussed at Carrier's next conference. This letter of
August 26, 1965, clearly met with the provisions of the 1955 agreement. Thus,
the provisions of Article V and Rule 41 were held in abeyance until conference.
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Conference was held on November 2, 1966, and the record indicates that
this claim was discussed. On April 25, 1967, General Chairman wrote Carrier
that Carrier failed to render decision on the claim within 60 days of the
conference and therefore the claim was payable. We cannot find further conclusive evidence in the record that an additional extension of time in which
the time limit provisions would be held in abeyance was agreed to following
the conference on November 2.
We therefore find that the time limit provisions of Article V and Rule 41
became effective following the conference on November 2, 1966. Failure of the
Carrier to render a decision within 60 days of that conference or to reach
agreement with General Chairman to further hold the claim in abeyance
resulted in making the claim payable.
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
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 30th day of October 1969.
Central Publishing Go., Indianapolis, Ind. 46206 Printed in U.S.A.
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