NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Docket Number :dS-21902
(Richard L. La Pearle
PARTIES TO DISPUTE:
(Bessemer and Lake Erie Railroad Company
STATEMENT OF CLAIM: This is to serve notice, as required by the rules
of the National Railroad Adjustment Board, of my
intention to file an ex-parte submission on August 3, 1976 covering an
unadjusted dispute between me and the Bessemer & Lake Erie Railroad
Company involving the question:
"LTnether I am physically able to return to work as a track
laborer with the Railroad."
OPINION OF BOARD: The operative facts of this case are reasonably
clear. They are:
1. Claimant Richard L. La Pearie entered Carrier's
service as a Trackman on June 10, 1974;
2. Claimant La Pearle resigned from Carrier's service
effective April 28, 1975;
3.
Or, or about April 2, 1976, Claimant La Pearle was
disapproved by Carrier for re-employment as a
Trackman;
4. By letter dated August 3, 1976, Claimant La Pearle
notified the Third Division, National Railroad
Adjustment Board of his intent to file an Ex Parte
Submission. covering the subject:
"Whether I am physically able to return
to work as a track laborer with the
Railroad.";
5. In Petitioner's Rebuttal to Carrier's Ex Parte
Submission, for the first time., contentions are
advanced that allege:
A. Claimant's resignation. was "coerced".
B. Claimant was discha_ ed in violation
of Rule 29(a) DISCIPLINE).
Award N·_mber
21893
Page
2
Docket Number
ILS-21902
C. Claim for lost wages plus interest was
advanced.
We have carefully reviewed the entire record in this case and
have seriously considered all of the arguments advanced by all parties
involved in this dispute including those presented by the respective
reuresentatives at the hearing held on Jar_uary
25, 1978.
It is our conclusion from this record that Claimant La Pearie
was not, on August
3, 1976,
an "employee" of the Carrier as the term
"employee" is used and intended in Section 1, Fifth, Section
2,
Second
and Section
3,
First (i) of the Railway Labor Act, as amended. There
is no valid showing in this record that hL. La Pearle's resignation of
April
28, 1975
was anything other than voluntary. Therefore, inasmuch
as he had taken himself out of the ranks of Carrier's employes, "*
no grievance or dispute exists over which this Board has jurisdiction
* * " (Third Division Award No.
18107).
See also Third Division Award
Nos.
9472, 15565,
and
18912.
Even if we were able to overcome the fatal defect outlined
above, we would still be confronted with the fact that Section
3
First
(i) of the Railway Labor Act, as amended requires that all disputes be
"handled in the usual manner" on the property before they may be
submitted to this Board for adjudication. This requirement is
jurisdictional. Thus, it is manifestly clear that the objective of the
Act is to require both sides to a dispute to come together on the
property "in the usual manner" and make a complete, open and honest
disclosure of their respective positions in an effort to reach agreement.
From the record in this case, it is apparent that no claim
or grievance was presented in writing on the property to any Carrier
Officer as required by Rule
37
of the Agreement. It is further apparent
from the contents of Petitioner's letter of August
3, 1976
listing
this case with this Board that no monetary claim was made prior to the
presentation of Petitioner's Rebuttal to Carrier's Ex Parte Submission.
The well-settled rules of procedure of this Board, including Circular
No. 1 of the Board, require that we limit our consideration to the
issues properly raised on the property.
Because no claim or grievance relative to Rule
29
was properly
initiated on the property, the jurisdictional requirement of handling
claims "in the usual manner" as mandated by Section
3,
First (i) of the
Railway Labor Act, as amended, has not been met. See Third Division
Award 17os.
21730, 20889, 20627,
and
20165.
Award N=ber
21893
Page
3
Docket Number
2::5-21902
Additionally, inasmuch as the disciplinary issue argument and
the monetary claim - including the demand for interest - was made for the
first time in Petitioner's Rebuttal to this Board, such contentions come
too late ar_d are beyond our authority to consider. See Third Division
Award Nos.
20039, 20598, 20408, 1971+6,
and 19101.
Based upon the state of the record before us, it is clear that
the individual here involved was not an "employee" within the purview of
the Railway Labor Act, as amended, when this dispute came to this Board;
that the dispute was not handled "in the usual manner" on the property;
that the time limit requirements of Rule
37
have not been complied
with
and that the subject of the dispute was altered after having been
presented to this Board to include an argument dealing with an alleged
violation of Rule
29
- Discipline along with a monetary claim (including
interest).
Any one of the foregoing is sufficient to justify a dismissal
of this claim. W"men considered in consort, we are left with no alternative
but to dismiss the claim in its entirety.
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 Petitioner involved in this dispute is not an Employe
of Respondent Carrier within the :meaning of the Railway Labor Act, as
approved June
21, 1934;
That the Carrier involved in this dispute is a Carrier within
the meaning of the Railway Labor Act, as approved June 21,
1934;
That this Division of the Adjustment Board lacks jurisdiction
over the dispute involved herein.
That even if the Board were able to overcome the hu_^dle of the
procedural deficiences, we would, after a review of the record on the
merits, be compelled to conclude that the Agreement was not violated.
Award Number 21893 Page ?+
Docket N,-tuber MS-21902
A W A R D
Claims dismissed.
NATIONAL RAILROAD AJDUSI^NMTT BOARD
By Order of Third Division
ATTEST:
d'AV y ~//Q
.,J
Executive Secretary
Dated at Chicago, Illinois, this 15th day of February 1978.
( P;9AR 0 71978
`j
. BED P