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              NATIONAL RAILROAD ADJUST::-ENT BOARD

              Award dumber 21900


                    THUD DIVISION Docket Number ?W-21704

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      - Joseph A. Sickles, Referee


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(Brotherhood of Maintenance of Way -zmployes
 PARTIES TO DISr=:
 (Burlington Northern Inc.
 STATEMU OF CT2,T:4: "Claim of the Syste- Committee of the Brotherhood
 that: J

 The claims submitted in behalf of Section Fcr°r^:an E. L. Torske and Sectionm°en Gary Swanson, Dennis Eckhardt and C. L. Fletcher covering cost of clothing, ruined while unloading ties on January 21, 1974 shall be allowed as presented as required by the last sentence of Agreement Rule 42 A which reads:

        '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 conten tions of the Company as to other similar claims

        or grievances.' (System File 21-3/:'i7-24 8/5/75 )"


OPLTICi, OF BOARD: On .".arch 7, 197!1, "claims" and "Cc=1ainto'" were
 submitted for money to replace clothing which
 had assertedly been ruined while performing certain of Carrier's
 pursuits.

 7ne Roadmaster, to whom the claims had been submitted, referred the matter to a Superintendent for handling. That Superintendent failed to respond, and on June 7, 1974, the Claimants requested that the claims be paid because of the failure to reply. Subsequent similar requests were submitted on September 9, 1974 and June 13, 1975.
On July 1, 1975, Carrier made initial reply, stating that Rule 4L A was inapplicable. Rule 42 A:

            "All claims or grievances must be presented in writing by or on behalf of tae employe _nrclved, to the officer of the Company authorized to receive same, within sixty (60) days from the date o='- the occurrence on :which. tae claim or grievance-

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                  Award Number 21$(10 Page 2

                  Docket Number W-21704


            "is based. Should any such claim or grievance

    _ -- be disallowed, the Company shall, within -

            sixty (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 Company as to other

            similar claims or grievances."


Carrier insists that Rule 42 A is not intended to apply to this type of a circumstance, and cites Awards to support its conclusion that it had no obligation to respond to the "claims" and/or "complaints." Further, it states that the Employes failed to cite any rule on the property, which is fatal to its case, and that the claim was untimely and submitted to the wrong person.

 Surely, if the matter had been handled on the property in the normal procedural manner, a faillure to cite a rule during the entire handling would be fatal, but here, the Carrier did not reply to the first letters, so that a focus was then placed on other matters. In Award 13741, relied upon by Carrier, we find:

            "...and Carrier resaonds that it is not aware of any rule prohibiting the action coxplained of, the burden shifts to the Organization. to particularize the rule(s)." (underscoring supplied)


See, also, this writer's Award 19355:

            "It appears rather obvious that when a Carrier s_Decifically advises the Organi- sation that it has failed to identify the rile or rules alleged to have been violated, the Organization is obligated to advise the

            Carrier of the rule under which it seeks.

            redress." (underscoring supplied)


Thus, the assertion - under this record - that a rule was not cited does not consitute a total defense.
                  Award 1tuaber 21900 . Page 3

                  Docket number IV-21704


It may very well be that the Employes were dilatory in their assertions and that they addressed them to the wrong official. Similarly, we concur with the Carrier's assertion that Employes could submit obviously frivolous claims. But, we are inclined to determine that the Carrier can protect itself from such circumstances by the simple expedient of responding to the claim and setting forth its defenses therein. Were we to rule to the contrary, we would allow the Carrier to make the determination as to what is or is not a claim which is worthy of presentation here, and in essence, we would permit the Carrier to usurp the function of this Board. In order to protect against such a result, we are inclined to reaffirm this Board's determinations in Awards 16564, 19422 and 20900, among others.

        FI1`7DIRGS: The Third Division of the Adjustment Board, upon the whale record and all the evidence, finds and holds:


        That the parties waived oral hearing;


That the Carrier and the E.-mloyes 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.


                  A W A R D


        C=aim sustained.


                        1IATIONAL RAILROAD ADJUSTMENT BOARD

                        8y Order of Third Division


ATTEST:
 Executive Secretary

 Dated at Caicago, Illinois, this 15th day of February 1978.