CARRIER MEMBERS' DISSENT

TO

AWARD 23845, DOCKET CL-22514

(REFEREE EDGETT)

"Under this caption the petitioner or petitioners must

clearly state the particular question upon which an award is

desired." (Emphasis Supplied)

The Statement of Claim in this case reads as follows:

"Claim of the System Committee of the Brotherhood (GL-8548) that:

"(a) The Bureau violated the Rules Agreement, particularly Rules 5, 6, 9 and 13 by arbitrarily a claimant.

_(b) Claimant J. R. Fleeting, Jr., should be paid at r basic rate of pay at the straight

s cove regular been compen

t~ ~te~ ~ addition to west he has already sated for each of the days tbat,,the bulletin (No. 246

advertised claimant's position.

There is absolutely no reference to Rule 24 or the T~ Lest issue to be

~ in the Statement of Claim. The was the same statement of claim which found was filed with the Board in the "Notice of Intent", which under Board rules ~e furnished to Carrier' notifying them to file their submission in this dispute. It should come as no surprise ' therefore, that Carrier did not even mention the Ties Limit question in its submission, since they had no

knowledge that petitioner was disregarding the Bird's circular 1, and -pre
knowledge an issue for decision which could only be found under their Position.

In

short, the Carrier fully expected the Organi~Hon to discuss the "PO

r question" that was framed for discussion under "Statement of Claim" in

their "Notice of Intent", and that "tea the issue which Carrier developed
th its Submission.

Neutral now asserts:

_tee question on which the Employee desire. an award was

presented to the Board in the Stn tement of Clam, as required.
~e Rule under which they assert that the claim is payable
(in addition to the ~~ °n ~e merits) is the Time Limit
Rule."
We challenge the Neutral or the ma as we did ding discussion, to
show us where Rule 24 or the Time Limit issue was referred to in the "Stn te
ment of Claim". If that was "the particular question upon which an award is
question upon desired" Lrjrcular _17then it should readily appear but it d~ n=t.
It should also be noted that the organization not only failed to include a Time Limit issue in the "Notice of Intent" or the "Sta~nt of
Carrier Members' Dissent to --
Award 23845, Docket CL-22514
Page 3

Claim" is their Submission but they presented the following issue in their "Statement of Facts":

"The particular rules of our agreement that are apgli-

sable = this cla im are Rules 5, 6, 9 and 13, in part reading

as follows:" (Emphasis Supplied)

Again we find no reference to Rule 24.

In the course of discussion of this case some two years ago, the Neutral's attention was directed by the Organization to several Awards including his own Award 20410 been sustained under the Time Limit Rules even though such roles were not set forth in the Statement of Claim. Upon examinations, it was found that no argument was presented on this point in that case and the Neutral was so advised. If it need be said at this late date, a case does not stand as a precedent for a principle that was not discussed or resolved.
On the other hand, the Neutral was fully advised there were numerous Awards of the Third Division wh by either side to discuss questions or issues not set out in the statement of claim, including Time Limit issues. The fact that such issues may have been discussed on the property at one level or another is irrelevant to the point whether they are in compliance with Circular 1. If Circular 1 can be treated with contempt and ignored by this Neutral for what he conceives to be a good reason, then each Neutral will have the same privilege for reasons which the Organization may not consider palatable and Circular 1 then becomes a nullity. Award 6954 (Coffey) (April 12, 7955):
Carrier Members' Dissent to
Award 23845, Docket CL-22514
Pa ge 4

"In preparing all submissions, which relate to the moving cause of controversy, Petitioner should have looked carefully to the Board's Rules of Procedure (Circular No. 1, last reprinted November 1, 1948) before splitting claims. In connection therewith and for 'statement of claim' all parties are on notice, that:

'Under this caption the petitioner or petitioners must clearly state the particular question, upon which an award is desired.'

"Pursuant to the foregoing it has become the accepted practice to regard the substantive part of claim as the pleading on which issue must be joined, and other parts of the claim as being the proposed remedy. No amendment to vart one, the sub- stantive pleading, is ever permissible and the Board cannot

6beyg~ that part of the claimg as stated, in deciding the

2 issue methereby

.

"In connection with their submissions, it is expected of all parties that they will clearly and briefly set forth all relevant, argumentative facts and the Agreement or rules involved, under their statement of position of the submission that the Board looks for the theory of the case, and failure on the part of one or both parties to adhere strictly to procedural requirements has contributed much to the unacceptability, by the parties to the dispute, of Board awards.

"The moving party always has the right to rely upon an alleged violation of one or more rules and to cite purported violative action in more than one respect in connection with one and the same dispute, but it cannot vacillate or make other than a frontal attack. It can better accomplish by direction than indirection whatever may be its object.

"In the instant dockets, Petitioner could have had an expression from the Board whether new positions had been created and/or whether the rates fixed by the Carrier are in accord with Article 7, but such controversy was not put in issue by the claim and developed pursuant to issue properly joined thereon in accordance with Board procedure.

"If intended to put is issue here the question whether any reduction is permissible when positions are reclassified, Petitioner could clearly have framed that issue by its state- ment of claim and position, so as to have brought about an

Carrier Members' Dissent to
Award 23845, Docket CL-22514
Page 5

"interpretation of Article 2(a), and then by holding fast - thereto could have obtained that result, but it shirked its duty in both instances."

(Emphasis Supplied)

Award 10537 (Sheridan):

"From the outset, we are confronted with a jurisdictional question, the foregoing claim does not mention the fact that the subject work is being performed by persons other than those who come within the Agreement between the Carrier and Organization.

"We are extremely reluctant to impose stringent provisions for the processing of claims but we m in recognizing past precedents in the nature of decisions of this Board which hold that if the claim is substantially amended, it cannot be considered by this Board. This is in violation of Railway Labor Act and the awards of this Hoard prohibit it. See Awards 4346, 5077, 6692 and 10193.

"In the instant case, the Organization elected to 2ursue its theory of Agreement violations as set forth in its origi- nal Statement of Claim, and in reliance thereon, the Carrier moved to defend or rebut this claim. the Carrier is not bur- dened to look at matters other than those contained in the original Statement of Claim in order to prepare a defense if it has one.

"In the instant case, the Statement of Claim fails to mention that the work in question is being performed by or has been transferred to persons other than those subject to the Agreement between the Carrier and the Organization.

"The evidence shows that the claim submitted here is not the one that was handled by the Carrier, there has been a failure to comply with Section 3 First (i) of the Railroad

Labor Act as amended." (Emphasis Supplied)

Award 10904 (Ray):

"While this position was taken by the Organization in the handling of the claim on the property it is not encompassed within the Statement of Claims as submitted to this Board and under the accepted practice of the Board cannot be considered. The sole question presented by the claim is whether through restoration of force Claimant was restored to service. Whether

Carrier Members' Dissent to
Award 23845, Docket CL-22514
Page 6

"Carrier should have recalled Claimant to fill some temporary vacancy and the effect of such rec the Board under the present claim."

. (Emphasis Supplied)

Award 15523 (Kenan):

"The Employes also contend that Bulletin No. 628 does

not conform to the bulletin requirements established by

Rule 9 and that it and all actions taken under it must,

therefore, be rescinded. Without question, Bulletin No.'

628 does not follow the form established by Rule 9. However,

this attack on the bulletin is not properly before this

Board. The Employes' statement of claim attacks the bulle

tin only for imposing the welding requirements on applicants

for the Carpenter 2nd Class position. The Board is limited

to the issues raised in the statement of claim. See Award

Nos. 6954 (Coffey), 10904 (Ray) and 11006 (Boyd). "

(Emphasis Supplied)

Award 16955 (Brown):

"In ho hanril;na nn the propgrty Petitioner claimed a

violation of Regulation 3-C-1 of the basic Aereemznt and

rP"nested removal of the asterisk desination from the

Sharrsville Agency, and also made request for an increase

is pay of $75.00 per month for the Agent at Sharpsville under

the provisions of Regulation 8-1-1 (b) of the basic Agreement.

There two natters were not encompassed within the Statement

of Claim as submitted to this Board. In accord with prior

awards. these matters nay not be considered. See Awards 6954,

8426, 10904, 15523" (Emphasis Supplied)

Award 17512 (Duean):

"Under the Railway Labor Act, and our rules of procedure the only question properly before us is that presented in the formal statement of clais." (Emphasis Supplied)

Award 17525 (Dugan):

"This Board has recently held in Award No. 17512, that the only question properly before this Board is that presented in the formal statement of claim."

(Emphasis Supplied)

Carrier Members' Dissent to
Award 23845, Docket CL-25514
Page 7

Award 18239 (Dolnick):

"The Board has no power to go beyond the issues in

the Statement of Claim. And that is confined to the ques

tion whether the Carrier had the right to direct the

Claimant to make restitution. A restitution in the amount

stolen is not an excessive penalty. And this is properly

so because the most Carrier can now recover from the Claim

ant is $150.00. Such a penalty for the violation of explicit

instructions is neither arbitrary, capricious nor unreason

able." (Emphasis Supplied)

Award 19306 (Devine):

"It is well settled that the only dispute properly referable to the Board is the claim appealed highest appeals officer and that the Board is not empowered to go beyond the issues presented in the formal statement of claim. Awards 17512, 18239, 15523.

(Emphasis Supplied)

Award 19507 (0'Brien):

"While Petitioner argued before the Board that `it was necessary to remove the rail braces from the gauge plates, and the roller sorina hanger from the stock rails,' the Statement of Claim is limited to the work of installing these switch heaters, hence there is no issue before us concerning rail braces or roller hangers."

(Emphasis Supplied)

Award 19790 (Brent):

"Finally, this Board has no power to go beyond the

issues raised in the original statement of claim."

(Emphasis Supplied)

Award 21543 (Wallace):

"The Claim is premised upon violations of Rules 101, 307 and 309 of the agreement. Carrier denies these violations. The matter was progressed on the property in the usual way except that the Organization alleged that Carrier's answer to its appeal had not been received within the 60 day time limit rule and therefore payment of the claim should be made under the contract. No other evidence or comment was made concerning the time limit rule on the property.

Carrier h!embers' Dissent to
Award 23345, Docket CL-25514
Page 8

"The organization cites a number of awards sustaining claims under the time limit mules such as Rule 701. The Carrier, in turn, answers this procedural claim on various grounds. wP~ ° considPr nnlv th~ aiTaRt failed to

-e h's a cart of his focal state^anr_ of claim. We have

reviewed all the awards cited by the Carrier and the Organiza

tion and each included the issue of time limits in its fornsal

statement of claim with one exception, Award 20763 (Lieberman).

In that case the time limit question was raised on the property

and was fully discussed in the opinion, but no c^ention was

tae h ~ '-h ~s= ° -1 not ra~sed i_" the formal stateRZnt of

r7 &;.m Accordingly, we do not consider that ~ this award repre

sents sents authority contrary to the general view reflected in the

awards, that h"'"'° limits issue m~·st be included in the

format claim. That was not done here and we find it is decisive

on this issue. See Awards 17512 (Dugan) and 11006 (Boyd)."

(Emphasis Supplied)

We submit there was no issue properly before this Tribunal dealing with Rule 24 of the parties c
quently we were not empowered to consider that question.

had the privilege to frame the claim in any manner they desired. Their "Notice of Intent", "Statement of Claim", "Statement of Facts" and their Rebuttal indicate what they expected the Board to decide, and the Hoard exceeded its jurisdiction when it considered matters outside the question

properly presented. . For the reasons set forth above, we dissent.

.sl ~ i

The petitioner

.- F. Euker

l

Le ow

~r

mason

~Connell

p. ~. V ga