(a) Carrier violated the current Signalmen's Agreement, as amended, particularly Rule 60, when it dismissed Signal Maintainer William R. Spence, Jr., on or about March 30, 1969, without a hearing.
(c) Carrier should now be required to restore Mr. Spence to his original position of Signal Maintainer, second trick, West End Interlocking, with seniority and all other rights unimpaired and pay him from April 2, 1969, until he is restored to service.
On February 19, 1969, Claimant William R. Spence, Jr. applied for the position of Signal Maintainer on a form indicating that, if accepted, his connection with the Carrier would be temporary and could be terminated at any time during the first ninety days, if the applicant was not approved by proper authority. On that basis Claimant was put to work the same day.
On March 30, 1969, Claimant was notified that he was disqualified for all service and not to report back to work.
The Time Limit on Claims Rule, Article V of the August 21, 1954 National Agreement provides that "all claims or grievances must be presented in writing by or on behalf of the employe involved * * *" and that "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" or "If not so notified, the claim or grievance shall be allowed as presented * * *" The time limit applies to decisions by the carrier on appeals as well as to original decisions.
The General Chairman appealed the claim to the Chief Engineer on July 25, 1969 and the claim was not denied by the latter until October 31, 1969, more than sixty days after the appeal was filed.
As stated previously, Claimant went to work February 19, 1969 and was notified on March 30, 1969 that he was disqualified for all service and that he was not to report to work. Carrier points out that the notice to Claimant was within the ninety (90) days period provided within Rule 32 of the applicable agreement.
Since an appeal of a claim or grievance "on behalf of the employe involved" must be disallowed within 60 days from the date of filing or the claim or grievance is allowed as presented, we must first reach the conclusion that Claimant held employe status for the purpose of the Time Limit on Claims Rule if we are to find a violation.
Carrier contends that Claimant did not have any seniority and did not have any employe status under the rules agreement and that Time Limit on Claims Rule therefore has no application here.
The meaning of Rule 32 is that an applicant for employment, who is put to work, is in a probationary status during the first ninety days. His application need not be accepted and Carrier may notify Claimant at any time before the expiration of the ninety day period that his application has not been approved. In the instant case, Claimant was told that he was disqualified and not to report back about thirty nine days after he began to work.
The rejection of Claimant's employment application was within the prerogative of the Carrier and since Claimant did not have permanent employe status prior to the filing a claim in his behalf, we find the Time Limit Rule has no application to the appeal on his behalf to the Chief Engineer. Thus, there was no violation of this Rule. In this connection we would direct attention to Award No. 3152, Third Division.
In Award 3152 Claimant filed his written application for a position as Trackman with the Carrier on July 17, 1944. He was permitted to go to work the same day. His application was not approved and he was relieved of work on August 2, 1944. The Referee Edward P. Carter, stated in the Opinion:
In another case, Award 3520 of this Division, Claimant made application for employment with the Carrier on June 14, 1943. She began work on June 22, 1943 and her acceptance as an employe was conditioned upon Carrier's approval within 60 days. The Referee held as follows: "When the application was disapproved within that period, whether with or without a justifiable reason, her relationship with the Carrier terminated without the accrual of any rights whatever under the contract"
In view of the facts, reasoning and precedents herein before set forth, we conclude that the claim must be denied.
FINDINGS: The Third Division of the Adustment 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
The Majority in Award 19117 has erred. In order to arrive at its award, it was necessary for the Majority to consider whether or not there was substance in the claim as originated rather than to confine itself to the procedural matter which constituted the only question before us. Because of the time limit violation we were precluded from considering the substantive merits of the claim itself. Award 18047, et al.
While we also differ with the Majority in other matters considered in the award, we will not follow its example of considering questions not before us, other than to state that our silence is not consent.