NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Docket Number MS-22287
(Robert W. Woods
PARTIES TO DISPUTE:
(The Long Island Rail Road Company
STATEMENT OF CLAIM: "The Carrier violated the applicable agreement
when they failed to include sick leave pay when
computing my displacement allowance."
OPINION
OF BOARD: For some years Claimant was
employed by
Carrier
in the position of Usher. On March 1, 1976 a
reorganization of forces took place in which a number of ushers,
including Claimant, were adversely affected. Claimant was displaced
effective March 1, 1976 and received thereafter a monthly displacement
allowance under the terms of the Agreement between the parties dated
April 1, 1964. The amount of displacement allowance is calculated on
the basis of a "test period" comprising the 12 month period prior to
displacement (in this case March 1, 1975 to March 1, 1976).
After receiving his displacement allowance commencing May
1976 and monthly thereafter Claimant made no complaint until
February 28, 1977 when he wrote to Carrier's Superintendent-Personnel
Management asserting that his test period figures had been miscalculated
and that his displacement allowance therefore was less than it should
be. Specifically, Claimant maintained that the sum of $997.00 received
by him sometime in March 1975 should have been included in his test
period earnings. It is undisputed that the $997.00 was paid to
Claimant for the period September 9, 1974 to November 6, 1974 while
he was absent from duty due to a nervous disorder for which he
admitted himself to a hospital for the mentally ill. Carrier maintains
that the particular illness in question was not covered by the Sick
Leave Agreement but Carrier and the Organization nonetheless reached
an accommodation by which Claimant was allowed some sick leave
benefits for that absence. In his complaint filed February 28, 1977
Claimant asserted that the $997.00 thus received should be counted as
earnings during his test period.
Award Number
22574
Page 2
Docket Number MS-22287
Carrier's Superintendent-Personnel Management responded on
April 5, 1977 to Claimant's complaint, advised him that the $997.00
had no relationship to the test period earnings and suggested that
further inquiries be directed to the payroll department. Sometime in
May 1977 a further discussion was had between the Organization and
Carrier representatives concerning Mr. Wood's test period figures.
Under date of June 6, 1977 Carrier President notified the Organization
that the $997.00 could not be included in the test period earnings.
There was no further handling of this matter on the property.
Under date of September 26, 1977 Claimant filed notice of
intent to file ex parte submission on a "dispute" identified as
follows:
"The Carrier violated the applicable agreement when
they failed to include sick leave pay when computing
my displacement allowance."
At oral argument on this case Claimant asserted in addition that his
pension was not properly calculated. Of course this last point is
completely de novo and was never raised on the property.
We have reviewed this matter with care and conclude that
this "claim" must be dismissed on procedural/jurisdictional grounds.
Claimant's letter of inquiry of February 28, 1977 was answered and
his request for inclusion of the $997.00 was denied in April 1977,
but at no time did he file a claim or grievance. Even if arguendo
the February 28, 1977 letter of inquiry was considered a grievance
(and we are not persuaded that it was) it was fatally out of time
under the time limit provisions of Rule 7-A-2 and 4-D-1 of the
controlling agreement. Whether on the basis of untimeliness or of
failure to progress a claim through the appeal procedure on the
property, we are jurisdictionally barred under Circular No. 1 and
Section 3, First (i) of the Railway Labor Labor Act from handling this
case on the merits. See Awards
1864and 21373.
FINDINGS: The Third Division of the Adjustment Board, after giving the
parties to this dispute due notice of hearing thereon, and
upon the whole record and all the evidence, finds and holds:
Award Number
22574
Page 3
Docket Number MS-22287
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 the claim is jurisdictionally and procedurally barred.
A W A R D
Claim dismissed for lack of jurisdiction.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
ATTEST: ~L/f/4
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Dated at Chicago, Illinois, this 30th day of October
1979.