NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Docket Number MW-19482
(Brotherhood of Maintenance of Way Employee
PARTIES TO DISPUTE:
(Chicago and Western Indiana Railroad Company
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood that:
(1) The Carrier violated the Agreement when, instead of calling
and using Carpenter Don Basile for overtime service on December 28 and 31,
1969, it called and used junior Carpenter P, Jagielski (Carrier's file
323-MofW).
(2) Mr. Don Basile be allowed six and two-thirds (6-2/3) hours of
pay at the carpenter's time and one-half rate because of the aforesaid violation.
OPINION OF BOARD: This opinion is dispositive of Dockets No. MW-19482,
MW-19510 and MW-19568 and should appear and be incorporated
in all three dockets by reference. In each of these three dockets Mr. Dan Basile
is the claimant and all three claims are based upon the last that Carpenter Leader
P. 7agielski was called out for overtime work when Don Basile was available. The
Carrier's defense in each case was that the claimant was not qualified because
the overtime work required leadership ability and the claimant had never done,
this particular work without supervision.
The record shows that long after these claims had been filed and
handled up to the Carrier's highest officer on the property, the claimant
personally, without the intervention of the Organization, entered into a
general settlement agreement with the Carrier which contains the following
broad release:
"It is also understood and agreed that the above payment _is in
full settlement and release of any and all claims of any kind which I have
or might have against Chicago and Western Indiana Railroad Company, its
proprietary, owning and using lines, including claims arising under the
labor protective conditions contained in Appendix C-1 to the agreements,
effective May 1, 1971, between Atchison, Topeka and Santa Fe Railway Company,
Grand Trunk Western Railroad Company, Norfolk and Western Railway Company
and National Railroad Passenger Corporation, and claims arising under any
other agreement or statute affording me employment protection or covering
the conditions of my employment."
Award Number 19527 Page 2
Docket Number MW-19482
This Board has consistently recognized that an employee is bound
by such a settlement and release, and that in the face of such a settlement
and release the disputes coming thereunder are deemed to be adjusted and this
Board has no jurisdiction. It is not necessary for the Board to deal with
the substantive issue raised in these dockets as the issue has been made moot.
The Organization's claim that this jurisdictional defect was not
raised when the matter was handled on the property is not controlling for
this Board has held that jurisdictional issues can be raised for the first
time at the Board level, or at any rime whatever in the proceedings. (See
Awards 8885 AIcMahon, 9189 Weston, 10956 Dolnick, 16786 Zumas).
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 Employee involved in this dispute are
respectively Carrier and Employee 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 question of whether the Agreement was violated is moot.
A W A R D
The claim is dismissed.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
ATTEST:
e-al
2:2&0,enn -
Executive Secretary
Dated at Chicago, Illinois, this 20th day of December 1972.