NATIONAL RAILROAD ADJUSTMENT BOAR

THIRD DIVISION

William M, Edgett, Referee

PARTIES TO DISPUTE;

Award Number 20410
Docket Number CL-20584

(Brotherhood of Railway, Airline and Steamship ( Clerks, Freight Handlers, Express and ( Station Employee

(The Atchison, Topeka and Santa Fe Railway company ( - Coast Lines -

STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood (GL-7507) that:

(1) The Carrier violated and continues to violate the terms of the (Clerks' or Telegraphers') Agreement, as amended by Public Law No. 91-541, when it refuses to pay D, P, Pens and others listed below the retroactive pay increases as required by Public Law No. 91-541.

(2) That Carrier shall now pay an additional 57. (five per cent) for all compensation received for the period of January 1, 1970 to and including December 31, 1970 and an additional 32C (thirty-two cents) per hour for all straight time hours worked for the period November 1, 1970 to and including
(forty-eight cents) per hour for all overtime hours worked November 1, 1970 to and including December 31, 1970.

(3) The Carrier shall be required to pay on the total amount claimed in Item 2 above 79. (seven per cent) as interest commencing January 1, 197x and compounded annually until this claim is paid in full.

for the period

List of Claimants:

J, Loftin
M. Evans
P. Nuaaes
R. Delette
T. Ernst
M. Vaughn
M, Siko
C. R. Smith
J. Bilkwic
R. Bergman
M, Calleros
V. B. Hardgravea
J. R, Herrera
V. Ramos
R. C, Bastio
T. Johnson
B. J. Wood

L. G. Simmons D.
James Patterson P.

T. Armstrong D,
G, T. Thacker J,
W, Wyatt R,
R. H. Lopez T.
J. J. Garand R,.

H. Charlie

R. N. Ruse S
P. J. Ward J
I. Carrillo L

E. M, Magdeleao G

H. Bigelow
G, Wolf
D. C. Ernst
M, A. Schmidt

R, Bruce
Leway
R. Walker
Gerbrand
T.. Scoggias
L, Terflinger
R. Swank III

M G. Daniels

. G. Sanfratello
L. Huntley
. D. Furan

.. C, Rorick

L, E, Juntz
G.. Morgaa
S. G, Hall
J. J. Sosa

R, McDonald
D. S, Condit
R. E, Evrard
A. Cassara
F, V.. Desaulaiera
G. L. Wolff
D, S, Condit
D,. E, Bruns
P. J. McCaulley
C. Owens
A. Hernandez
F, 2. Sanchez
D.. Rilbourn
L..E. Webster
C, E,. Aaury
W, R, Sturgell

Award Number 20410 Page 2

Docket Number CL-20584

OPINION OF BOARD: After Carrier failed to respond to the claim within
the time limit provided in Rule 43 the Organization appealed the claim on the property and to this Board as a violation of that Rule, which reads:

RULE 43--TIME LIMITS ON CLAIMS AND GRIEVANCES

(From Article V of August 21, 1954 Agreement) 43-A. All claims or grievances arising on or after January 1, 1955 should be handled as follows:

(1) 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 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 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.

Carrier argues that the word claim (or grievance) does not encompass the claim which was present it is based on a Joint Resolution of Congress, not the collective bargaining agreement. It is also a after the default constituted an adjustment of the claim.

Award No. 16564 disposes of Carrier's first contention. It states in pertinent part:

Rule 21 of the confronting Agreement, which is a reproduction of Section V, 1 (a) of the National Agreement of August 21, 1954, contractually obligates a Carrier to disallow a "claim or grievance" within 60 days of its filing, giving its reasons for disallowance in writing, under pain of allowance "as presented" if those procedural requirements There are no exceptions. A Carrier may not disregard a filed claim because it, in the Carrier's opinion, is: (1) without merit; (2) is not supported by the Rules Agreement; or, (3) is not a dispute within the contemplation of the Railway Labor Act. Carrier's obligation to deny any claim filed within 60 days of filing, giving its reasons for disallowance in writing, is, by application of Rule 21, absolute. Since Carrier failed in this contractual obligation we are compelled, by Rule 21, to sustain the instant claim as presented.

Award Number 20410 Page 3

Docket Number CL-20584

The subsequent agreement of the parties on the merits of the claim, as it may affect others, does not make any provision for adjustment of this procedural claim. to that agreement something which the parties did not see fit to add. It is no more at liberty to accomplish that result indirectly, in the guise of interpretation, then it is to do it directly. The claim must 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 aver the dispute involved herein; and

That the claim must be sustained.

A W A R D

Claim sustained.

NATIONAL RAILROAD ADJUSTMENT BOARD

By Order of Third Division

ATTEST: d-Iaz ~,~/

Executive Secretary

Dated at Chicago, Illinois, this 27th day of September 1974.

CARRIER MEMBERS' DISSENT TO AWARD 20410, DOCKET CL-20584

(Referee Edgett)

We dissent. The matters of record which clearly establish this claim should have been dismissed are discussed in the memorandum submitted by the Carrier Members. That memorandum is retained in the Master File and by reference is incorporated in this dissent.

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